Delaware recognizes both no-fault and fault-based grounds for divorce. The no-fault ground requires that the marriage is irretrievably broken, which the court presumes when the parties have lived separate and apart for at least six months. Fault-based grounds include misconduct that destroys the marriage such as abuse or infidelity, but these are rarely used since the no-fault option is more straightforward. Delaware law does not require parties to prove fault to obtain a divorce.
To file for divorce in Delaware, one spouse files a Petition for Divorce in the Family Court of the county where either spouse resides. The filing fee is approximately $165. The petition must be served on the other spouse through personal service by the county sheriff or a private process server. The respondent has 20 days to file an answer. Delaware permits filing the petition before the six-month separation period is complete, though the court will not finalize the divorce until separation requirements are met.
At least one spouse must have been a bona fide resident of Delaware for six continuous months immediately before filing the petition. Members of the armed forces who have been stationed in Delaware for at least six months also meet this requirement. There is no county-level residency requirement, but the petition must be filed in the county where either spouse resides.
Delaware follows equitable distribution principles when dividing marital property in a divorce. Under Delaware Code Title 13 §1513, the court divides marital property in a manner that is fair and equitable. Only marital property is subject to division—property acquired during the marriage. Separate property, such as assets owned before the marriage or received as gifts or inheritance, is generally excluded from the division.
Delaware courts consider the length of the marriage, any prior marriages of either party, the age, health, station, amount, and sources of income, vocational skills, employability, estate, liabilities, and needs of each party. The court also evaluates whether property was acquired before or during the marriage, the contribution of each spouse to the acquisition, preservation, depreciation, or appreciation of marital property, the contribution of a spouse as homemaker, the value of each spouse's separate property, the economic circumstances of each party at the time the division becomes effective, tax consequences, and any other factor the court deems relevant.
Delaware courts determine child custody based on the best interests of the child, as set forth in Delaware Code Title 13 §722. The court may award sole or joint legal custody and sole or joint physical custody. Delaware does not have a statutory presumption in favor of either parent or in favor of joint custody; each case is evaluated on its own facts.
Legal custody refers to the right to make major decisions about the child's health, education, and welfare. Physical custody, also called residential custody, determines where the child primarily lives. Delaware courts commonly award joint legal custody while establishing a primary residential parent with a specific visitation schedule for the other parent.
Courts consider the wishes of the parents and the child, the child's interaction and relationship with each parent and siblings, the child's adjustment to home, school, and community, the mental and physical health of all individuals involved, compliance by both parents with any prior court orders, evidence of domestic violence, and the criminal history of either party. The court also considers which parent is more likely to permit frequent and meaningful contact between the child and the other parent.
Delaware requires that the parties have lived separate and apart for at least six months before the court can grant a divorce. If both parties agree on all terms, an uncontested divorce can be finalized shortly after the six-month separation period. Contested divorces may take one to two years or longer depending on the issues involved.
No. Delaware allows you to file the divorce petition before the six-month separation period is complete. However, the court cannot grant the final divorce until at least six months of separation have elapsed. Many couples use the waiting period to negotiate agreements on property, support, and custody.
Living separate and apart means the spouses are not sharing the same living quarters and are not engaging in sexual relations. In some cases, spouses may be considered separated while living under the same roof if they maintain completely separate lives, though this can be more difficult to prove.
Delaware is primarily a no-fault state, and marital misconduct is generally not a factor in property division. The court focuses on equitable distribution based on financial factors, contributions to the marriage, and the needs of each party rather than assigning blame for the divorce.