No-Fault Divorce in Delaware: What It Means (2026 Guide)

Delaware is a purely no-fault divorce state, meaning the only legal ground for divorce is that the marriage is irretrievably broken and reconciliation is improbable under 13 Del. C. § 1505. Unlike states that allow fault-based grounds such as adultery or cruelty as separate filing categories, Delaware requires spouses to demonstrate marital breakdown through separation, incompatibility, misconduct, or mental illness. The filing fee for divorce in Delaware is $165 ($155 petition fee plus $10 court security fee), and at least one spouse must have resided in the state for a minimum of six months before filing. Most divorces require a six-month separation period before the court will grant the decree, though misconduct-based filings may proceed without any separation requirement.

Key Facts: Delaware No-Fault Divorce at a Glance

What Does No-Fault Divorce Mean in Delaware?

Delaware courts grant divorce when the marriage is irretrievably broken and reconciliation is improbable, eliminating the need to prove wrongdoing by either spouse under 13 Del. C. § 1505(a). This no-fault approach simplifies divorce proceedings by focusing on the breakdown of the marital relationship rather than assigning blame for marital misconduct. Delaware adopted this standard to reduce conflict, protect children from adversarial litigation, and allow couples to dissolve marriages with greater dignity and efficiency.

The irretrievably broken standard under 13 Del. C. § 1505(b) can be established through four different circumstances:

• Voluntary separation: Both spouses agree to live apart for six or more months
• Separation caused by respondent misconduct: Includes adultery, physical abuse, mental cruelty, desertion, habitual intoxication, or drug addiction
• Separation caused by respondent mental illness: The respondent has been confined to a mental institution for two or more years
• Separation caused by incompatibility: The spouses have irreconcilable differences requiring six months of separation

Delaware law under 13 Del. C. § 1503(7) defines separation broadly, allowing spouses to satisfy the requirement while living under the same roof provided they occupy separate bedrooms and do not engage in sexual relations. This practical accommodation recognizes that many couples cannot afford to maintain two separate households during the divorce process.

How to File for No-Fault Divorce in Delaware: Step-by-Step Process

Filing for no-fault divorce in Delaware requires meeting the six-month residency requirement, completing court forms, paying the $165 filing fee, and serving papers on your spouse within 120 days under 13 Del. C. § 1507. The process takes approximately 3-6 months for uncontested cases and 12-18 months for contested divorces involving disputes over property, custody, or support. Delaware Family Court handles all divorce matters through locations in New Castle County (Wilmington), Kent County (Dover), and Sussex County (Georgetown).

The step-by-step process includes:

1. Confirm residency: At least one spouse must have lived in Delaware for six continuous months immediately before filing under 13 Del. C. § 1504

2. Complete the petition: File Form 316 (Petition for Divorce) with the Family Court in the county where either spouse resides

3. Pay the filing fee: Submit $165 ($155 petition fee plus $10 court security fee) or file an Application to Proceed In Forma Pauperis if household income falls at or below 150% of the federal poverty level (approximately $23,895 for a single person in 2026)

4. Serve your spouse: Delaware requires personal service by a sheriff, constable, or private process server within 120 days of filing

5. Wait for response: The respondent has 20 days to file an answer under 13 Del. C. § 1509

6. Complete parenting course: If children are involved, both parents must attend a four-hour Parent Education Class certified by the Department of Services for Children, Youth and Their Families

7. Attend hearings: Uncontested cases may require only one brief hearing, while contested matters involve multiple court appearances

8. Receive final decree: The court issues the divorce decree at least 30 days after filing, once all requirements are satisfied

Delaware Divorce Residency Requirements Explained

Delaware Family Court has jurisdiction over divorce actions when either the petitioner or respondent has actually resided in Delaware, or been stationed in the state as a member of the U.S. armed forces, continuously for six or more months immediately preceding filing under 13 Del. C. § 1504(a). This six-month residency requirement is the only geographic threshold; Delaware does not impose separate county residency requirements.

Military personnel stationed in Delaware satisfy the residency requirement even if their legal domicile remains in another state, provided they have been stationed in Delaware for at least six continuous months. This provision ensures service members can access Delaware courts without having to establish permanent domicile.

Delaware also maintains special jurisdiction over same-sex marriages solemnized in Delaware or created through civil union conversion under 13 Del. C. § 1504(c). If neither party resides in Delaware but the marriage was performed in the state, and their home jurisdiction does not permit dissolution of same-sex marriages, Delaware Family Court retains jurisdiction.

The Six-Month Separation Period: What Counts as Living Apart

Delaware requires spouses to live separate and apart for six or more months immediately preceding the court ruling on the divorce petition for most grounds under 13 Del. C. § 1507(e). This separation period applies to voluntary separation, separation caused by incompatibility, and separation caused by mental illness grounds. The six-month clock must run before the court grants the divorce, but you may file the petition at any time after separation begins.

Separation under Delaware law does not require maintaining two separate households. Under 13 Del. C. § 1503(7), separation may commence and continue while spouses reside under the same roof, provided both conditions are met:

• The parties occupy separate bedrooms
• The parties do not have sexual relations with each other

This in-house separation exception provides critical flexibility for couples who cannot afford duplicate housing costs during the divorce process. Courts examine whether the parties held themselves out as separated and ceased functioning as a married unit, including evidence of separate finances, meals, and social activities.

The six-month separation period is waived entirely for divorces based on respondent misconduct under 13 Del. C. § 1505(b)(2). If you can prove adultery, physical or mental abuse, desertion, habitual intoxication, drug addiction, or conviction of a crime resulting in imprisonment of one year or more, no separation period is required.

Contested vs. Uncontested No-Fault Divorce in Delaware

Uncontested divorces in Delaware typically finalize in 90-120 days after satisfying the six-month separation requirement, while contested cases average 12-18 months and may exceed two years for complex property disputes. The distinction between contested and uncontested divorce determines timeline, cost, and court involvement. Uncontested divorces cost $1,500-$3,500 with attorney assistance, while contested divorces range from $15,000-$50,000 or more depending on complexity.

An uncontested divorce requires complete agreement between spouses on all issues: property division, debt allocation, spousal support, child custody, child support, and parenting time. When spouses cannot reach agreement, the case becomes contested and requires judicial intervention.

Delaware Family Court encourages mediation to resolve disputes before trial. Mediation costs approximately $100-$300 per hour, and many couples achieve settlement within 2-4 sessions totaling $400-$1,200. Successful mediation converts a contested case to uncontested status, dramatically reducing overall costs and timeline.

Property Division in Delaware No-Fault Divorce

Delaware is an equitable distribution state, meaning courts divide marital property fairly but not necessarily equally under 13 Del. C. § 1513. The court distributes marital assets without regard to marital misconduct, focusing instead on economic factors and the circumstances of each case. Property division outcomes range from 50/50 splits to 60/40 or even 70/30 distributions depending on the factors present.

Marital property includes all assets acquired during the marriage regardless of title, encompassing real estate, vehicles, bank accounts, retirement accounts (including 401(k) plans, IRAs, and pensions), investment portfolios, business interests, and personal property. Separate property acquired before marriage generally remains with the original owner unless it has been commingled with marital assets.

Delaware courts consider multiple factors when dividing property under 13 Del. C. § 1513(a):

• The age, health, and station of each party
• The amount and sources of income for each party
• The vocational skills and employability of each party
• Each party's estate, liabilities, and needs
• Whether the property award substitutes for or supplements alimony
• The opportunity of each party for future acquisition of assets and income
• The contribution or dissipation of each party to marital property (including homemaker contributions)
• The value of property set apart to each party
• The economic circumstances of each party when division becomes effective

Retirement accounts require special attention in Delaware divorces. Courts must consider the present value of pension benefits at separation, the ability of each party to earn Social Security, and any actuarial offsets the parties present. Qualified Domestic Relations Orders (QDROs) are typically required to divide 401(k) plans and pensions without tax penalties.

Alimony and Spousal Support in Delaware

Delaware courts may award alimony to a dependent spouse who lacks sufficient property or income to meet reasonable needs and cannot support themselves through appropriate employment under 13 Del. C. § 1512. Alimony is not automatic; the requesting spouse must prove financial dependency and demonstrate that the other spouse has the ability to pay. Alimony duration is generally limited to 50% of the marriage length, though marriages of 20 years or longer have no durational cap.

To qualify for alimony under Delaware law, the requesting spouse must satisfy all three criteria:

• Is dependent upon the other party for support, and the other party is not otherwise obligated to provide support post-divorce
• Lacks sufficient property, including marital property awards, to meet reasonable needs
• Is unable to support themselves through appropriate employment, or is custodian of a child whose circumstances make seeking employment inappropriate

Courts consider the following factors when determining alimony amount and duration under 13 Del. C. § 1512(c):

• Financial resources of the party seeking alimony
• Time and expense required to acquire education or training for employment
• Standard of living established during the marriage
• Duration of the marriage
• Age and physical/emotional condition of each party
• Financial or other contributions to the other party's education, training, or earning capacity
• The paying spouse's ability to meet their own needs while paying alimony
• Tax consequences of alimony payments
• Whether either party foregone economic or educational opportunities during the marriage

Alimony terminates automatically upon the death of either party, the remarriage of the recipient, or the cohabitation of the recipient with another adult in a relationship where they hold themselves out as a couple under 13 Del. C. § 1512(f). Recipients must promptly notify payors of remarriage or cohabitation.

Child Custody and Parenting Plans in Delaware Divorce

Delaware courts determine custody and residential arrangements based on the best interests of the child under 13 Del. C. § 722, with no presumption favoring either parent based on sex or gender. Joint legal custody (shared decision-making authority) is common, while primary residential custody typically goes to one parent with the other receiving visitation. Delaware courts evaluate eight statutory factors plus any other relevant circumstances when making custody determinations.

The best interests factors under 13 Del. C. § 722 include:

• The wishes of the parents regarding custody and residential arrangements
• The wishes of the child regarding custody and residential arrangements
• The child's relationship with parents, siblings, grandparents, and other significant persons
• The child's adjustment to home, school, and community
• The mental and physical health of all individuals involved
• Past and present compliance by both parents with parental rights and responsibilities
• Evidence of domestic violence under Chapter 7A
• Any other factor affecting the child's best interest

Parents with minor children must complete a four-hour Parent Education Class before the court will finalize the divorce. The course, certified by the Department of Services for Children, Youth and Their Families, educates parents on the impact of family restructuring on children. Both parents must submit certificates of completion before the divorce proceeds.

Delaware courts encourage parenting plans that maximize each parent's involvement while providing stability for children. Common arrangements include alternating weeks, 3-4-4-3 schedules, or primary residence with one parent and every-other-weekend visitation for the other.

Delaware Divorce Filing Fees and Costs

The total filing fee for divorce in Delaware is $165, consisting of a $155 petition filing fee and a $10 court security fee as of March 2026. Additional costs include service of process ($10-$100 depending on method), parent education course fees (up to $100 per parent), and potential mediation fees ($100-$300 per hour). Attorney fees for uncontested divorces range from $1,500-$3,500, while contested divorces typically cost $15,000-$50,000 or more.

Delaware Family Court waives the $165 filing fee for petitioners who demonstrate financial hardship through an Application to Proceed In Forma Pauperis. Approval typically requires household income at or below 150% of the federal poverty level, which equals approximately $23,895 for a single-person household in 2026. Fee waiver applications require documentation of income, assets, and expenses.

How Long Does No-Fault Divorce Take in Delaware?

A no-fault divorce in Delaware takes a minimum of six months due to the mandatory separation period, with uncontested cases finalizing 30-90 days after that requirement is satisfied under 13 Del. C. § 1507. Contested divorces average 12-18 months and may exceed two years for complex cases involving business valuations, custody disputes, or appeals. The 30-day minimum waiting period after filing provides a final opportunity for reconciliation before the court grants the decree.

Typical Delaware divorce timeline:

• Day 1: Begin separation (may file petition immediately under 13 Del. C. § 1507(e))
• Days 1-20: Serve respondent; respondent has 20 days to answer
• Months 1-6: Complete separation period (except for misconduct-based filings)
• Month 6+: Court hearing scheduled after separation complete
• 30+ days after filing: Earliest possible final decree date
• Uncontested total: 7-9 months from separation start
• Contested total: 12-24 months from filing

Misconduct-based divorces may proceed faster because they require no separation period. However, the petitioner must prove misconduct allegations through evidence, which can extend the process if the respondent disputes the claims.

Frequently Asked Questions About Delaware No-Fault Divorce

Can I get divorced in Delaware if my spouse doesn't agree?

Yes, Delaware grants no-fault divorces even when one spouse opposes the divorce. The petitioner must prove the marriage is irretrievably broken under 13 Del. C. § 1505, which is established by demonstrating the six-month separation period. Consent from the respondent is not required; the divorce will proceed as long as proper service is completed and the statutory requirements are met. The respondent has 20 days to file an answer after being served.

How long must I live in Delaware before filing for divorce?

At least one spouse must reside in Delaware for six continuous months immediately before filing under 13 Del. C. § 1504. Military personnel stationed in Delaware for six months also satisfy this requirement even if their legal domicile is another state. There is no separate county residency requirement; you may file in any Delaware county where either spouse resides.

Can my spouse and I separate while living in the same house?

Yes, Delaware law under 13 Del. C. § 1503(7) allows in-house separation provided spouses occupy separate bedrooms and do not have sexual relations. Courts examine whether the parties ceased functioning as a married unit, including evidence of separate finances, meals, and social activities. This accommodation helps couples who cannot afford to maintain two separate households during the divorce process.

What is the difference between legal custody and residential custody?

Legal custody refers to decision-making authority over major aspects of the child's life, including education, healthcare, and religious upbringing. Residential custody (also called physical custody) determines where the child lives. Delaware courts often award joint legal custody while designating one parent as the primary residential custodian. The non-residential parent typically receives a visitation schedule under 13 Del. C. § 722.

Is Delaware a 50/50 property division state?

No, Delaware is an equitable distribution state under 13 Del. C. § 1513, meaning courts divide marital property fairly but not necessarily equally. Judges consider multiple factors including each spouse's income, earning capacity, contributions to marital property (including homemaker contributions), and economic circumstances. Outcomes range from 50/50 splits to 60/40 or 70/30 distributions depending on the specific facts.

How is alimony calculated in Delaware?

Delaware has no formula for calculating alimony amounts. Courts consider factors under 13 Del. C. § 1512(c) including each party's financial resources, the standard of living during marriage, marriage duration, and the time needed for the requesting spouse to become self-supporting. Alimony duration is generally limited to 50% of the marriage length, except marriages of 20 years or longer have no durational cap.

Do I need to attend a parenting class?

Yes, if you have minor children, both parents must complete a four-hour Parent Education Class certified by the Department of Services for Children, Youth and Their Families. The court will not finalize the divorce until both parents submit certificates of completion. Course fees typically cost up to $100 per parent. The class educates parents on the impact of divorce on children and strategies for co-parenting.

What happens if my spouse doesn't respond to the divorce petition?

If the respondent fails to file an answer within 20 days of service under 13 Del. C. § 1509, you may request a default judgment. The court may grant the divorce and approve the terms proposed in your petition without the respondent's participation. However, the court must still be satisfied that all statutory requirements are met, including the separation period for applicable grounds.

Can I waive the six-month separation requirement?

The separation requirement is waived only for divorces based on respondent misconduct under 13 Del. C. § 1505(b)(2). Qualifying misconduct includes adultery, physical or mental abuse, desertion, habitual intoxication, drug addiction, or conviction of a crime resulting in imprisonment of one year or more. You must prove misconduct allegations through evidence; if the respondent disputes the claims, a hearing will be required.

How do I file for divorce if I cannot afford the filing fee?

Delaware Family Court waives the $165 filing fee for petitioners who demonstrate financial hardship through an Application to Proceed In Forma Pauperis. Approval requires household income at or below 150% of the federal poverty level, approximately $23,895 for a single-person household in 2026. You must submit documentation of income, assets, and monthly expenses with your application.

Written by Antonio G. Jimenez, Esq. (Florida Bar No. 21022), covering Delaware divorce law.

Filing fees verified as of March 2026. Verify current fees with your local Delaware Family Court clerk at courts.delaware.gov.