Military divorce in Delaware requires navigating both state family law under 13 Del.C. Chapter 15 and federal protections including the Servicemembers Civil Relief Act (SCRA) and Uniformed Services Former Spouses' Protection Act (USFSPA). Delaware Family Court handles all military divorces with a $165 filing fee, mandatory 6-month separation period, and equitable distribution of military retirement benefits up to 50% through DFAS direct payment. Service members stationed at Dover Air Force Base and other Delaware installations can establish residency after 6 months of assignment, even if domiciled elsewhere.
Key Facts: Military Divorce in Delaware
| Requirement | Delaware Rule |
|---|---|
| Filing Fee | $165 ($155 petition + $10 security fee) |
| Residency Requirement | 6 months Delaware residence OR 6 months military stationing |
| Waiting Period | 6 months separation before divorce granted |
| Grounds | No-fault (separation) or fault-based (misconduct) |
| Property Division | Equitable distribution (not automatic 50/50) |
| Military Pension Division | Up to 50% of disposable retired pay via DFAS |
| SCRA Protection | 90-day minimum stay for deployed service members |
| Court Locations | Wilmington (New Castle), Dover (Kent), Georgetown (Sussex) |
Residency Requirements for Military Divorce in Delaware
Delaware Family Court accepts military divorce filings when either spouse has been stationed in Delaware for at least 6 months immediately preceding the filing, regardless of legal domicile. Under 13 Del.C. § 1504, jurisdiction is established through physical presence in the state, making Dover Air Force Base personnel eligible to file in Delaware courts after completing 6 months of assignment. Civilian spouses residing in Delaware for 6 months also meet the threshold.
The 6-month military stationing rule provides significant flexibility for service members who maintain legal residence in another state for tax purposes or voting. Delaware courts have consistently held that assignment orders to Dover AFB or other Delaware installations satisfy the residency requirement, even when the service member intends to relocate after completing their tour. This rule prevents service members from being forced to travel to distant home-of-record states to obtain a divorce.
There is no separate county residency requirement in Delaware. Service members and their spouses may file in any of the three Family Court locations: New Castle County in Wilmington, Kent County in Dover, or Sussex County in Georgetown. Most Dover AFB personnel file in Kent County due to geographic proximity.
SCRA Protections for Delaware Military Divorce
The Servicemembers Civil Relief Act (50 U.S.C. § 3931) provides federal protections that supersede Delaware state procedures when a service member is deployed or on active duty. Delaware courts must verify military status before proceeding with any divorce action through a Military Affidavit, formally known as an Affidavit of Non-Military Service. The plaintiff spouse bears responsibility for filing this verification with the court before any default judgment can be entered.
Under SCRA, a deployed service member can request a stay (postponement) of divorce proceedings for at least 90 days if military duties materially affect their ability to participate. The service member must submit a written request explaining how current duties prevent appearance, include a statement from the commanding officer confirming unavailability, and specify a date when participation will be possible. Delaware courts routinely grant these stays and may extend them beyond 90 days when deployment circumstances require additional time.
The SCRA also prevents default judgments against absent service members. If a service member fails to appear due to military service, the court must appoint an attorney to represent their interests before any judgment can be entered. This protection applies to all aspects of the divorce, including property division, custody determinations, and support orders. Delaware Family Court maintains a list of attorneys experienced in military family law who serve in this capacity.
SCRA protections do not permanently prevent divorce. The Act delays litigation to ensure fair participation but does not cancel the proceedings. Once the service member becomes available or the stay period expires, the divorce proceeds under normal Delaware procedures. Service members should understand that invoking SCRA delays the resolution of all issues, including those that might otherwise be resolved in their favor.
Filing for Military Divorce in Delaware
The filing fee for military divorce in Delaware is $165, consisting of a $155 petition fee and a $10 court security fee. Service of process adds $10 to $100 depending on method, bringing the minimum total to approximately $175 for an uncontested case. As of March 2026, these fees are current but should be verified with the Delaware Family Court clerk before filing.
Delaware Family Court waives the $165 filing fee for petitioners demonstrating financial hardship through an Application to Proceed In Forma Pauperis. Applicants must submit an affidavit documenting household income, assets, monthly expenses, and dependents. Approval typically requires income at or below 150% of the federal poverty level, approximately $23,895 for a single-person household in 2026. Military spouses experiencing financial hardship during separation may qualify.
Required Documents for Military Divorce
- Petition for Divorce (completed and signed)
- Military Affidavit (verifying defendant's military status)
- Financial Disclosure (income, assets, debts)
- Leave and Earnings Statement (LES) showing military income
- Service of Process documentation
- Proposed Parenting Plan (if children involved)
- Property Settlement Agreement (if uncontested)
Before Delaware Family Court will finalize any divorce, the spouses must have been separated for at least 6 months. Under 13 Del.C. § 1505, separation means living separate and apart, though spouses may reside under the same roof if they do not share a bedroom or have sexual relations. This 6-month waiting period runs concurrently with the filing process, meaning couples can file immediately upon separation and finalize once the waiting period completes.
Division of Military Retirement Benefits
Delaware courts divide military retirement benefits as marital property under the Uniformed Services Former Spouses' Protection Act (USFSPA), which authorizes state courts to treat military retired pay as divisible property rather than income. Under 13 Del.C. § 1513, Delaware follows equitable distribution principles, meaning courts divide military pensions fairly based on contribution and circumstances rather than automatically awarding 50% to each spouse.
The Defense Finance and Accounting Service (DFAS) processes direct payments to former spouses when the 10/10 rule is satisfied: the couple was married for at least 10 years during which the service member performed at least 10 years of creditable military service. When this threshold is met, DFAS will send payments directly to the former spouse up to a maximum of 50% of disposable retired pay. If the marriage did not overlap with 10 years of service, the court order remains valid, but the service member must make payments directly to the former spouse.
Military Pension Division Comparison
| Factor | Direct DFAS Payment | Service Member Payment |
|---|---|---|
| Eligibility | 10 years marriage + 10 years service overlap | Any marriage length |
| Maximum Amount | 50% of disposable retired pay | Court-ordered amount |
| Payment Source | DFAS automated disbursement | Service member obligation |
| Enforcement | Federal garnishment authority | State court contempt |
| Required Form | DD Form 2293 | Court order only |
The Frozen Benefit Rule applies to divorces finalized after December 23, 2016. For active-duty service members, the former spouse's share is calculated based on the member's pay grade and years of service at the time of divorce, not at retirement. This prevents the non-military spouse from benefiting from post-divorce promotions or additional service time. For example, if a service member divorces as an E-6 with 12 years of service but retires as an E-8 with 20 years, the former spouse's award is calculated using E-6/12-year values.
Disposable retired pay excludes several categories of compensation from division: disability pay (both VA disability and Combat-Related Special Compensation), amounts waived to receive VA compensation, and Survivor Benefit Plan premiums. Service members who waive a portion of retirement pay to receive VA disability benefits reduce the amount available for division with a former spouse.
Survivor Benefit Plan (SBP) in Delaware Military Divorce
The Survivor Benefit Plan functions as insurance protecting a former spouse's continued income if the military retiree dies first. Without SBP coverage, military retirement payments terminate upon the retiree's death, leaving the former spouse without the income stream awarded in the divorce decree. Delaware courts routinely order SBP coverage as part of military divorce property settlements to protect the former spouse's equitable interest.
Service members must elect former spouse SBP coverage within one year of the divorce decree using DD Form 2656-1. If the service member fails to make this election, the former spouse can file a deemed election using DD Form 2656-10, also within one year of the court order. Missing this deadline can result in permanent loss of SBP coverage despite the court order requiring it. Former spouses should always file a deemed election rather than depending on the service member to comply.
SBP premiums reduce the retiree's monthly payment by approximately 6.5% of the base amount. The benefit pays the surviving former spouse 55% of the covered retired pay amount. A former spouse who remarries before age 55 loses SBP eligibility during that marriage, but coverage resumes if the subsequent marriage ends. Remarriage after age 55 does not affect eligibility.
Child Custody and Military Deployment
Delaware determines child custody according to the best interests of the child standard, considering each parent's capacity to support the child's relationship with the other parent, the child's adjustment to home and school, and any history of domestic violence. Under Delaware law, military service and potential deployments are factors the court considers but cannot be the sole basis for denying custody to a service member.
Military parents should include deployment clauses in custody agreements specifying how parenting time adjusts during active duty assignments, how the child maintains contact with the deployed parent through video calls and other communication, and how decision-making responsibilities transfer during absence. Delaware courts favor temporary custody modifications during deployment rather than permanent changes, preserving the service member's parental rights when they return.
The Servicemembers Civil Relief Act allows military parents to request stays of custody modification proceedings when deployment affects their ability to participate. A deployed parent facing a custody modification motion can postpone the hearing until they return, preventing the civilian parent from obtaining permanent changes while the service member is unavailable. Delaware courts have consistently protected deployed parents' rights under SCRA.
Relocation and PCS Orders
Permanent Change of Station (PCS) orders create unique challenges for military custody arrangements. Delaware requires the relocating parent to file a motion and provide formal notice to the other parent before leaving the state with a child. Failure to follow proper procedures can result in contempt findings, modification of custody, or immediate return orders.
Delaware courts balance several factors when evaluating military relocation requests: the motivation for the move, the quality of opportunities available to the child at the new location, and the impact on the child's relationship with the non-relocating parent. Courts may approve relocation with enhanced visitation schedules, virtual parenting time provisions, and allocation of travel costs between parents.
Child Support and Military Income
Delaware child support calculations include all military income, not just base pay. Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are counted as income for support purposes, even though these allowances are not federally taxable. The Leave and Earnings Statement (LES) provides comprehensive documentation of all military compensation for child support calculations.
Service members living in government housing on base do not receive BAH as cash, and Delaware courts may exclude imputed housing value from gross income in these circumstances. However, courts retain discretion to consider the value of provided housing when determining whether deviation from standard guidelines is appropriate. Service members receiving both child support obligations and government housing may be eligible for BAH Differential, a partial housing allowance for support-paying personnel in military quarters.
Delaware uses the Melson Formula for child support calculations, which considers the needs of both parents and children while ensuring each parent retains a self-support allowance. Military families with children may see higher support obligations than civilian families at equivalent income levels because BAH and BAS significantly increase the gross income figure used in calculations.
Spousal Support (Alimony) in Military Divorce
Delaware awards alimony under 13 Del.C. § 1512 when a spouse is financially dependent and lacks sufficient property or employment capacity to meet reasonable needs. Courts consider the standard of living established during the marriage, each spouse's financial resources including military retirement shares, and the time necessary to acquire education or training for employment.
The duration of Delaware alimony is limited to 50% of the marriage length for marriages under 20 years. A spouse married for 10 years may receive alimony for up to 5 years. Marriages lasting 20 years or longer have no time limitation on alimony eligibility, though the amount remains subject to court discretion based on statutory factors.
Alimony terminates automatically upon the death of either party, remarriage of the recipient, or cohabitation by the recipient with another adult in a relationship resembling marriage. Military pension division is separate from alimony, meaning a former spouse may receive both a share of military retirement and spousal support if both awards are warranted by the circumstances.
DFAS can garnish up to 65% of military retired pay when the total obligation includes both child support and alimony, compared to the 50% limit for property division alone. This distinction matters when structuring settlement agreements, as characterizing payments as support rather than property division increases enforcement options.
Equitable Distribution of Other Military Benefits
Beyond retirement pay, Delaware courts address division of other military-related assets accumulated during the marriage. The Thrift Savings Plan (TSP) is divisible marital property and can be divided through a Retirement Benefits Court Order, similar to a Qualified Domestic Relations Order (QDRO) for civilian retirement plans. The TSP portion acquired during the marriage is subject to equitable distribution.
Military healthcare benefits (TRICARE) continue for former spouses who meet the 20/20/20 rule: 20 years of marriage, 20 years of military service, and 20 years of overlap between the marriage and service. Former spouses meeting the 20/20/15 rule (15 years of overlap) receive transitional coverage for one year. Those not meeting either threshold lose TRICARE eligibility upon divorce.
Commissary, exchange, and MWR facility privileges end for former spouses upon divorce unless they qualify under the 20/20/20 rule. No partial benefit exists for these privileges. Former spouses should plan for civilian grocery, shopping, and recreation costs after divorce.
Dover Air Force Base Resources
Dover Air Force Base, home to the 436th Airlift Wing and over 5,000 military families, provides legal assistance services for divorce matters through the base legal office. Military members can receive advice on military-specific divorce issues, review of proposed settlement agreements, and preparation of powers of attorney. The legal office does not represent service members in contested proceedings but provides referrals to civilian attorneys experienced in military family law.
Military OneSource offers confidential counseling and support services for military families experiencing divorce, including up to 12 free counseling sessions per issue. The Dover AFB Airman and Family Readiness Center provides financial counseling, relocation assistance, and connections to community resources for both service members and spouses.
Frequently Asked Questions
Can I file for divorce in Delaware if my spouse is stationed overseas?
Yes, you can file for divorce in Delaware if you meet the 6-month residency requirement, even if your military spouse is stationed overseas. You must properly serve your spouse according to SCRA requirements, which may involve service through military channels or the Hague Convention for foreign service. Your spouse may request a stay of proceedings under SCRA if overseas duties materially affect their ability to participate. Delaware courts typically grant at least 90 days for service members to arrange participation.
How does the 10/10 rule affect my military pension rights?
The 10/10 rule determines whether DFAS makes direct payments to a former spouse, not whether the pension is divisible. If you were married for at least 10 years overlapping with 10 years of creditable service, DFAS will send your share (up to 50% of disposable retired pay) directly to you. If the overlap is shorter, the Delaware court can still award you a share, but the service member must pay you directly rather than through DFAS garnishment.
What happens to child custody if my military spouse gets deployed?
Delaware courts favor temporary custody modifications during deployment rather than permanent changes. Your custody agreement should include deployment clauses specifying temporary custody arrangements, communication schedules, and decision-making authority during absence. Under SCRA, a deployed service member can request a stay of any custody modification proceedings until they return. Delaware law prohibits courts from permanently altering custody based solely on military service requirements.
Is BAH included in Delaware child support calculations?
Yes, Delaware counts Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) as income for child support calculations even though these allowances are not federally taxable. If a service member lives in government housing on base and does not receive BAH as cash, the court may exclude this benefit or consider it as a factor in deviation from guidelines. The complete Leave and Earnings Statement (LES) should be used rather than relying on tax returns alone.
Can my spouse take more than 50% of my military retirement?
Delaware courts can award more than 50% of military retirement to a former spouse under equitable distribution principles. However, DFAS will only make direct payments up to 50% of disposable retired pay. If the court awards more than 50%, the service member must pay the difference directly to the former spouse. The 50% limit applies to DFAS disbursement, not to the court's authority to divide the asset.
How long does a military divorce take in Delaware?
Delaware requires a minimum 6-month separation period before finalizing any divorce. An uncontested military divorce with no deployment complications typically finalizes within 6-9 months from filing. Contested cases involving military pension valuation, custody disputes, or SCRA stays may take 12-24 months or longer. SCRA stay requests add at least 90 days to the timeline, and deployment during litigation can extend proceedings significantly.
Do I lose TRICARE if I get divorced?
Former spouses lose TRICARE eligibility upon divorce unless they qualify under the 20/20/20 rule: married for 20 years, military service of 20 years, and 20 years of overlap between marriage and service. Former spouses meeting the 20/20/15 rule (15 years of overlap) receive one year of transitional TRICARE coverage. Those not meeting either threshold should arrange civilian health insurance before the divorce is finalized.
What is the Frozen Benefit Rule and how does it affect me?
The Frozen Benefit Rule, effective for divorces after December 23, 2016, calculates the former spouse's retirement share based on the service member's pay grade and years of service at the time of divorce rather than at retirement. If you divorce an E-6 with 12 years of service who later retires as an E-8 with 20 years, your share is calculated using E-6/12-year values. This prevents former spouses from benefiting from post-divorce career advancement but also protects their share from reduction if the service member's career stalls.
Can I get both alimony and a share of military retirement?
Yes, Delaware treats military retirement division and alimony as separate awards. A former spouse may receive a share of military retirement as property division and also receive alimony if they qualify under 13 Del.C. § 1512. DFAS can garnish up to 65% of retired pay when the total obligation includes support (alimony or child support) in addition to property division, compared to the 50% limit for property division alone.
How do I protect my SBP benefits in the divorce?
Do not rely on your former spouse to elect Survivor Benefit Plan coverage. Within one year of the divorce decree, file a deemed election using DD Form 2656-10 along with a certified copy of the court order requiring SBP coverage. This ensures your SBP rights are protected regardless of whether the service member complies with the court order. Missing the one-year deadline can result in permanent loss of SBP benefits.
This guide provides general information about military divorce in Delaware as of March 2026. Military divorce involves complex interactions between state and federal law. Consult with a Delaware family law attorney experienced in military divorce for advice specific to your situation. Filing fees and procedures should be verified with Delaware Family Court before filing.
Author: Antonio G. Jimenez, Esq. | Florida Bar No. 21022 | Covering Delaware divorce law