Divorce Laws in Delaware: Complete 2026 Guide

Delaware is exclusively a no-fault divorce state. Under 13 Del.C. §1505(a), the court will enter a decree of divorce whenever it finds that the marriage is 'irretrievably broken' and that reconciliation is improbable. Unlike many other states, Delaware does not allow a separate fault-based divorce action — instead, marital misconduct and other circumstances serve as evidence of the irretrievable breakdown. To demonstrate that the marriage is irretrievably broken, a petitioner may show one of the following under 13 Del.C. §1505: (1) voluntary separation — the spouses have voluntarily lived separate and apart without cohabitation; (2) separation caused by the respondent's misconduct, where the misconduct is so destructive to the marriage that the petitioner cannot reasonably be expected to continue the marriage (misconduct includes but is not limited to adultery, bigamy, conviction of a crime with imprisonment of one year or more, repeated physical or verbal abuse, desertion, willful refusal to perform marital obligations, contracting a sexually transmitted disease, or habitual drunkenness or drug use); (3) separation caused by the respondent's mental illness; or (4) incompatibility — the spouses have lived apart for at least six months due to irreconcilable differences. Importantly, the word 'separation' in grounds 1, 3, and 4 means the spouses must have been living separate and apart for six or more months before the court will grant the divorce (13 Del.C. §1507(e)). However, a petitioner may file the petition at any time after separation begins — the six-month period must be satisfied before the divorce is actually granted, not before filing. Under Delaware law, 'living separate and apart' can occur even within the same household, as long as the spouses do not share a bedroom or have sexual relations (13 Del.C. §1503(7)). Reconciliation attempts will not automatically interrupt the separation period. Even if spouses temporarily sleep in the same bedroom or have sexual relations, the separation period is not reset as long as they have not shared a bedroom or had sexual relations for the 30 days immediately preceding the court hearing (13 Del.C. §1505(e)).

Under 13 Del.C. §1504(a), the Delaware Family Court has jurisdiction over divorce and annulment actions only where either the petitioner or the respondent has actually resided in Delaware — or has been stationed in Delaware as a member of the United States armed forces — continuously for six or more months immediately preceding the commencement of the action. This is a strict jurisdictional requirement, and the court will verify compliance before proceeding. The petition must be filed in the Family Court of the county where either spouse resides (13 Del.C. §1507). Delaware has three counties — New Castle, Kent, and Sussex — and each has a Family Court location. If neither spouse currently lives in Delaware but one or both previously did, and the case involves a same-gender marriage solemnized in Delaware or a civil union converted under Delaware law, the petition is filed in the county where one or both of the parties last resided (13 Del.C. §1504(c)). There is no separate county residency requirement in Delaware. The six-month state residency requirement is the only residency threshold. Military members who are stationed in Delaware but may be domiciled elsewhere satisfy the requirement as long as they have been stationed in the state for the requisite six months. If you recently moved to Delaware, you must wait until you have lived in the state for a full six months before filing your divorce petition.

Delaware is an equitable distribution state. Under 13 Del.C. §1513(a), the court shall, upon request of either party, equitably divide, distribute, and assign marital property between the parties 'without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors.' This means the court strives for a fair division, which may or may not result in a 50/50 split depending on the circumstances. The statute distinguishes between marital property and separate property. Under 13 Del.C. §1513(c), all property acquired by either party during the marriage is presumed to be marital property, regardless of how it is titled. This presumption can be overcome by showing the property was: (a) acquired by gift from a third party (with specific documentation requirements), (b) acquired in exchange for property owned before the marriage, (c) excluded by a valid agreement of the parties (such as a prenuptial agreement), or (d) an increase in value of property acquired before the marriage. Property transferred as a gift from one spouse to the other during the marriage is considered marital property. When dividing marital property, the court considers numerous factors under §1513(a), including: each spouse's contribution to the acquisition, preservation, or appreciation of the marital property (including contributions as a homemaker); the value of each party's separate property; the economic circumstances of each party at the time the division is to become effective; the length of the marriage; the age, health, and station of the parties; any tax consequences; and whether either party will serve as custodian of dependent children. The court may also impose a lien on marital property assigned to one party as security for payment of alimony or other obligations to the other party. Notably, Delaware courts may also determine the disposition of companion animals (pets) acquired during the marriage as marital property, considering factors such as each party's ability to care for the pet and the attachment between the pet and each spouse (13 Del.C. §1513).

Alimony (spousal support) in Delaware is governed by 13 Del.C. §1512. The court may award interim (temporary) alimony to a dependent party during the pendency of a divorce action, and may award post-divorce alimony upon finalization. Alimony is not automatic — the requesting spouse must demonstrate dependency by showing that they: (1) are dependent on the other spouse for support; (2) lack sufficient property (including any marital property award) to provide for their own reasonable needs; and (3) are unable to support themselves through appropriate employment, or are the custodian of a child whose condition makes it inappropriate for them to seek employment (13 Del.C. §1512(b)). Once dependency is established, the court determines the amount and duration of alimony based on numerous statutory factors under 13 Del.C. §1512(c), including: the financial resources of the requesting spouse; the time and expense required to obtain education or training for employment; the standard of living established during the marriage; the duration of the marriage; the age and health of both parties; financial contributions by either party to the other's education or career; the paying spouse's ability to meet their own needs while paying alimony; whether either spouse deferred economic or educational opportunities during the marriage; and any other factor the court finds just and appropriate. The alimony order is made 'without regard to marital misconduct.' Delaware law places a specific cap on the duration of alimony. Under 13 Del.C. §1512(d), alimony may not exceed 50% of the length of the marriage. However, if the marriage lasted 20 years or longer, there is no time limit on eligibility for alimony — though the court must still consider all statutory factors. A person awarded alimony has an ongoing obligation to make good-faith efforts to seek vocational training and employment (13 Del.C. §1512(e)). Alimony terminates automatically upon the death of either party, the remarriage of the recipient, or the cohabitation of the recipient with an intimate partner (13 Del.C. §1512(g)). A party who has waived the right to alimony in a prenuptial or postnuptial agreement cannot be awarded alimony.

Delaware determines child custody based on the 'best interests of the child' standard, as set forth in 13 Del.C. §722. The court may award sole or joint legal custody and will establish residential arrangements (physical custody) that serve the child's welfare. Joint legal custody means both parents share equal rights and responsibilities for major decisions concerning the child, including education, healthcare, and religious training. Even when parents share joint legal custody, one parent is typically designated as the primary residential parent. Under 13 Del.C. §722(a), the court must consider all relevant factors when determining the best interests of the child, including: (1) the wishes of both parents regarding custody and residential arrangements; (2) the wishes of the child; (3) the interaction and interrelationship of the child with parents, grandparents, siblings, and other significant persons; (4) the child's adjustment to home, school, and community; (5) the mental and physical health of all individuals involved; (6) past and present compliance by both parents with their parental rights and responsibilities; (7) evidence of domestic violence; and (8) the criminal history of any party or household member. Critically, the court may not presume that one parent is better qualified than the other based on sex (13 Del.C. §722(b)). Delaware also mandates that all parents (and sometimes third parties) involved in a custody or visitation proceeding must complete a certified parent education course (13 Del.C. §1507(h)). The program is typically six to eight hours and costs up to $100 per parent. A certificate of completion must be submitted to the court, and failure to do so within 180 days of filing may result in dismissal of the petition. The court may also appoint a guardian ad litem or an attorney for the child in custody proceedings to represent the child's interests. Visitation schedules are designed to allow frequent and meaningful contact with both parents, unless the court determines that contact with a parent would endanger the child's physical health or significantly harm the child's emotional development. Custody and visitation orders may be modified if circumstances change and modification would serve the child's best interests.

To file for divorce in Delaware, the petitioner begins by preparing and filing a Petition for Divorce/Annulment with the Family Court in the county where either spouse resides. The Delaware Family Court has developed standardized instruction packets (available free online or for a nominal fee at courthouse Resource Centers) that include all necessary forms, instructions, and sample documents. Key forms include the Petition for Divorce, a financial declaration, and — if there are minor children — an affidavit regarding children's rights under 13 Del.C. §1507(g). Once the petition and accompanying documents are completed, the petitioner files them with the Family Court clerk and pays the filing fee of approximately $165 (a $155 filing fee plus a $10 court security fee). Low-income filers may apply for a fee waiver by filing an Application to Proceed In Forma Pauperis. After filing, the petition must be served on the respondent. Service can be accomplished through the county Sheriff's office, a private process server, or certified mail. The respondent then has 20 days to file an answer. If the case is uncontested (the respondent does not answer within 20 days, or agrees to the divorce), the petitioner may elect to have the court decide the case on the papers alone or schedule a hearing. For contested cases, the court may order mediation or schedule a trial to resolve disputed issues. If there are minor children, both parents must complete a parent education course and submit certificates of completion before the divorce can be finalized. Once all requirements are met and the court is satisfied that the marriage is irretrievably broken, the court enters a final decree of divorce. All divorce cases in Delaware are heard by the Delaware Family Court, which has exclusive jurisdiction over divorce, annulment, child custody, child support, and related family matters (13 Del.C. §1504). The Family Court operates in all three of Delaware's counties: New Castle County (Leonard L. Williams Justice Center in Wilmington), Kent County (Family Court in Dover), and Sussex County (Family Court in Georgetown). You must file in the county where either you or your spouse lives. The Family Court is staffed by judges and commissioners. Commissioners typically handle child support matters and initial hearings, while judges preside over divorce trials and more complex proceedings. Either party who is dissatisfied with a commissioner's decision may appeal to a Family Court judge. The Family Court is a court of record, and its decisions are subject to further appeal to the Delaware Supreme Court. Delaware's court system is unique in that it has a separate Family Court specifically designed to handle domestic relations matters, rather than assigning them to a general-jurisdiction trial court. This structure allows Family Court judges and staff to develop specialized expertise in family law. The court provides extensive self-help resources, including instruction packets, FAQ documents, and Resource Centers in each county where self-represented litigants can obtain assistance with forms and procedures.

Delaware does not have a traditional post-filing 'waiting period' in the sense that some states impose a mandatory number of days after filing before a divorce can be granted. However, the state does impose a functional waiting period through its separation requirement. For most grounds — voluntary separation, separation caused by mental illness, and incompatibility — the spouses must have been living separate and apart for at least six months before the divorce can be granted (13 Del.C. §1507(e)). This six-month separation period must be completed before the court hearing, but the petition for divorce can be filed at any time after the separation begins. For divorces based on separation caused by the respondent's misconduct, there is no mandatory six-month separation period. However, the petitioner still must demonstrate that the parties are separated and that the misconduct was sufficiently destructive to the marriage. After the petition is filed and served on the respondent, the respondent has 20 days to file an answer or responsive pleading (13 Del.C. §1509). If the respondent does not file an answer within 20 days, or files an answer agreeing to the divorce, the case becomes uncontested. In an uncontested case, the petitioner may request that the court decide the matter solely on the filed papers, without a hearing. In contested cases, the court may delay the action for up to 60 days to allow the parties to seek mediation or counseling. As a practical matter, the minimum timeline from filing to final decree in an uncontested divorce is typically several weeks after the 20-day response period, assuming all paperwork is in order and the separation requirement has been met.