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What to Know About Divorce in Delaware

By: Kathryn Laffey

[05.19.2021]

Divorce is never easy, even when it’s for the best. How will you know your rights and what might be best for you? How can you put yourself in the best position to get through the process and start your new life? Ask the experts who can answer the questions you have from start to finish. Every divorce is different, which is why it’s essential to have a highly skilled Delaware divorce attorney by your side.

How long does a divorce take in Delaware?

Delaware has a specialized “Family Court,” which handles only divorces and child-related matters. For a divorce in Delaware, you will need to be separated from your spouse in order to file, and for at least six months, before the Court will finalize your divorce. In Delaware, separation doesn’t mean you need to live in separate homes, but you need to sleep in separate bedrooms and not have sexual relations with each other during the period of separation. 

The only exception to the six-month separation period is for a divorce based on fault grounds like abuse or adultery. In those cases, there is no particular time frame you must be separated before your divorce can be granted, but you will have to prove the fault grounds to the Court unless the other party admits misconduct. 

In addition, if you have children with your spouse, you must take a Parent Education Class and submit the required certificate of completion to the Court before your divorce will be granted. 

The most significant difference in Delaware is that the “Ancillary Matters” (Property Division and/or Alimony) are only decided by the Court after the divorce, which is different from most states. You can, however, request temporary or interim relief such as support while the divorce action is pending. Speaking with a skilled Delaware divorce attorney can be beneficial in helping you consider your options.

How much does it cost to file for divorce in Delaware?

The filing fee for a divorce in Delaware is $165.00. You may also have fees for publication in certain counties and an additional fee to serve the divorce papers on your spouse. In addition, there are filing fees for Property Division, Alimony, Child Support, Custody, and Visitation, if those are needed. 

Does Delaware recognize legal separation?

No. There isn’t a need to file anything with the Court in Delaware to separate from your spouse, and the courts don’t really recognize this status. In family law, when statutes reference “separation,” they mean that the spouses are either living in separate homes or intend to at some time. At the very least, they aren’t living as a married couple and sharing a bedroom. While you can’t file for legal separation in Delaware, the concept of separation is important because it starts the clock on the statutory six-month waiting period before your no-fault divorce can be complete and may affect the value or status of what property may be considered marital. 

Is Delaware a marital property state?

Delaware is what is called an “equitable distribution” state. This means that marital property means all property acquired during the marriage (even if in just one spouse’s name) and will not automatically be split 50/50 in a divorce. Instead, the Court will decide what kind of split is “equitable” or fair. This is based on several statutory factors, including how long the marriage was, the health and income levels of the parties, and whether alimony is awarded, among others. If the parties cannot agree on how the property is to be split, the Court will apply those factors and make a decision that the Court believes to be fair. Interestingly, the Family Court cannot consider any fault of either party in dividing property or awarding alimony.

Is Delaware a no-fault state for divorce?

Delaware does allow divorce without fault. The moving party just needs to allege that the marriage is “irretrievably broken,” meaning that they no longer want to be married and do not believe that reconciliation is possible. Both spouses do not have to agree on whether the marriage is over—only one needs to do so in order for the divorce to proceed. 

Does Delaware have alimony?

Yes. The Court may award alimony, both while the divorce is pending and after the parties are officially divorced. Alimony is awarded if the Court finds one party to be dependent on the other financially and is unable to support themselves given the parties’ standard of living. The dependent spouse is eligible for alimony for half the length of the marriage unless it was over 20 years; in that case, no time limit applies. The Court will assess the amount and length of alimony based on what it believes to be fair in light of several factors. These include the financial resources of the dependent spouse, the length and standard of living of the marriage, the age, health, and income of the parties, and several others. 

Do I get half of my spouse’s 401K in a divorce?

In Delaware, retirement accounts can be marital property if a party contributes to them during the marriage, and as such, they can represent one of the largest assets in a marital estate. While these assets can be split, it isn’t as simple as splitting other assets like the equity in a home or a vehicle due to the tax consequences. If, for example, a 401K is cashed out and split, the parties will be taxed. Some accounts cannot be cashed out early, and in many cases doing so will put both parties in a worse financial situation. There are options on how these accounts can be divided between divorcing spouses, usually by filing a Qualified Domestic Relations Order (or QDRO). Such Orders differ by type of account, are often complicated, and take a legal professional’s knowledge to complete. 

Competent legal professionals can guide you through the process and answer these questions and any others you may encounter. Divorce is stressful—but your experience with an advocate doesn’t have to be. Competent representation is key to preserving your time, money, and sanity as your case is completed. 

To learn how our team can help you, contact WhitbeckBennett by calling 800-516-3964 or emailing clientservices@wblaws.com.

To learn more about divorce, visit our Divorce Law page.

Related: Divorce Law

Kathryn Laffey

Kathryn Laffey

Partner

Kathryn J. Laffey is a partner at WhitbeckBennett, working at our Wilmington, Delaware office. Kathryn has 35+ years of experience specializing in all areas of Family Law, including divorce, custody, property division, guardianships, adoptions, abuse cases, and support. She is trained in Family Law and Guardianship Mediation and Parenting Coordination and has extensive volunteer experience as a Child Advocate. Learn more about Kathryn Laffey here.

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