Delaware Code Title 13, Chapter 15 - Divorce and Annulment

Delaware is a pure no-fault divorce state. The only ground for divorce is that the marriage is 'irretrievably broken' and reconciliation is improbable. This can be shown through voluntary separation, incompatibility, misconduct (adultery, abuse, desertion, substance abuse, etc.), or a spouse's mental illness. No period of separation is required for misconduct-based characterizations.

Effective: 2024

At least one spouse must have been a Delaware resident for at least 6 months immediately before the court rules on the divorce petition. You can file at any time, but the court cannot grant the divorce until the residency requirement is met. For same-gender civil unions entered in Delaware, residency is not required if neither spouse lives in-state.

Effective: 2024

A marriage may be annulled if it was void from the beginning (bigamy, incest) or voidable due to fraud, duress, mental incapacity, underage marriage without proper consent, or physical incapacity preventing consummation. Annulment treats the marriage as though it never legally existed.

Effective: 2024

Delaware follows equitable distribution. The court divides marital property fairly (not necessarily equally) without regard to marital misconduct. The court weighs factors including: length of marriage, each spouse's age, health, income, earning capacity, contributions as homemaker, economic circumstances, tax consequences, whether property awards are in lieu of alimony, and each party's opportunity for future asset acquisition. Property acquired during the marriage is presumed marital regardless of title.

Effective: 2024

An automatic restraining order takes effect the moment a divorce petition is filed, prohibiting both spouses from transferring, hiding, or disposing of any property except for normal business or necessities of life. The petitioner is bound immediately upon filing; the respondent is bound upon service. Companion animals are also protected from transfer without written agreement of both parties.

Effective: 2024

Prenuptial agreements must be in writing, signed by both parties, and become effective upon marriage. They are enforceable without additional consideration. A prenup can be challenged only if a spouse proves they did not sign voluntarily, or that the agreement was unconscionable when executed and the other spouse failed to disclose finances. The right of a child to support cannot be waived by a prenuptial agreement.

Effective: 2024

All custody and residential arrangement decisions are based on the child's best interests. The court considers 6 statutory factors: both parents' wishes, the child's wishes, the child's relationships with parents/siblings/household members, the child's adjustment to home/school/community, the mental and physical health of all individuals, and each parent's past compliance with parental duties. There is no gender preference — neither parent is presumed more qualified based on sex.

Effective: 2024

Delaware courts may award sole legal custody (one parent is primary caregiver and the child primarily resides with that parent) or joint legal custody. Even when one parent has sole custody, both parents retain the right to receive material information about the child's school progress, medical treatment, significant developments, school activities, and religious events. The court may issue temporary custody orders for up to 6 months.

Effective: 2024

The court determines which parent the child will primarily live with and sets a visitation schedule designed to encourage frequent and meaningful contact with both parents, unless contact would endanger the child or significantly impair emotional development. If a parent violates custody or visitation orders, the court can temporarily transfer custody for up to 30 days, impose a surcharge of up to 10% of the violating parent's monthly child support per violation, and award costs and attorney fees.

Effective: 2024

When a parent proposes to relocate with a child for 60+ days — either out of Delaware or in a way that materially changes the custody arrangement — the court applies specific relocation factors. These include the child's relationship quality with each parent, the child's age and developmental needs, feasibility of maintaining the non-relocating parent's relationship, the relocating parent's pattern of promoting or thwarting the other parent's relationship, and whether the move enhances the family's quality of life.

Effective: 2024

Visitation orders can be modified at any time if the child's best interests would be served. Consent or interim custody orders can also be modified under the best interest standard. However, contested custody orders entered after a full hearing face a higher bar — the court must find that continuing the order would endanger the child's physical health or significantly impair emotional development, unless 2 years have passed since the order was entered.

Effective: 2024

Delaware uses the Melson Formula — a unique child support calculation method that ensures each parent retains enough income for basic needs before calculating support. The formula combines income shares (both parents' income pooled proportionally) and percentage-of-income models. If income remains after basic needs, the child shares in additional income. The formula's values are indexed to the Consumer Expenditure Survey and updated every 2 years. It operates as a rebuttable presumption.

Effective: 2024

The court may award interim alimony during the divorce and post-divorce alimony to a dependent spouse who lacks sufficient property and cannot self-support through employment. Alimony is determined without regard to marital misconduct, considering factors like financial resources, time needed for education/training, marital standard of living, contributions to the other spouse's career, and ability of the paying spouse to meet their own needs. Duration is capped at 50% of the marriage length, but marriages of 20+ years have no time limit.

Effective: 2024

Any person receiving alimony has a continuing obligation to make good-faith efforts to find appropriate employment and vocational training. The court may only waive this requirement if it specifically finds, after a hearing, that requiring the alimony recipient to seek employment would be inequitable. This encourages financial independence after divorce.

Effective: 2024

Unless the parties agree otherwise in writing, alimony automatically terminates upon the death of either party or the remarriage or cohabitation of the recipient. 'Cohabitation' means regularly residing with another adult if the parties hold themselves out as a couple — proof of sexual relations is admissible but not required. The alimony recipient must promptly notify the paying spouse of remarriage or cohabitation.

Effective: 2024

A divorce petition must include an allegation of irretrievable breakdown, the ages and addresses of both spouses, date and place of marriage, and information about minor children. The petition is filed in the county where either spouse resides. The petitioner may request alimony, property division, name change, attorney fees, and interim relief all in one filing. When minor children are involved, the petitioner must submit a Children's Rights Affidavit.

Effective: 2024

When minor children are involved, both parents must complete a certified parenting education course of at least 4 hours covering children's developmental stages and adjustment to parental separation. Parents with a history of domestic violence must attend a separate, more intensive course that also covers DV prevention and its effects on children. The divorce cannot proceed until certificates of completion are filed with the court. Cost is capped at $100 per parent.

Effective: 2024

When the respondent does not contest the divorce, the petition's allegations are presumed true and the court can rule either after a hearing where only the petitioner testifies, or without a hearing based on a written affidavit. For contested divorces, the court may delay the action up to 60 days so spouses can seek counseling or mediation. The 6-month separation must be satisfied before the court enters any divorce decree.

Effective: 2024

The court may order either spouse to pay all or part of the other's attorney fees and legal costs after considering the financial resources of both parties. This applies to fees incurred before the divorce was filed, during the proceedings, and after judgment. The court can order payment directly to the attorney, who can enforce the order in their own name.

Effective: 2024

Delaware Family Court requires mandatory mediation in all custody, visitation, child support, and guardianship proceedings. A court-employed mediator meets with both parties to identify disputed issues and attempt settlement before trial. No trial can occur until mediation is completed unless the court orders otherwise. Mediation is waived when there has been a finding of domestic violence or a no-contact order is in effect, unless the victim's attorney requests it.

Effective: 2024

Evidence of domestic violence — even if not committed in the child's presence — is a mandatory factor in custody decisions. There is a rebuttable presumption that a perpetrator of domestic violence shall not receive sole or joint custody or primary residence of a child. If custody is awarded to a DV perpetrator, the court must order completion of a specialized DV counseling program, and may also order substance abuse treatment. 'Domestic violence' includes physical abuse, sexual abuse, and threats against a spouse, child, or other household member.

Effective: 2024

Victims of domestic violence can obtain a Protection from Abuse (PFA) order through Family Court. 'Abuse' includes physical harm, threats, coercion, and cruelty to companion animals used for control. PFA orders can restrain the abuser from contact, grant temporary custody, exclude the abuser from the shared home, and provide other protective relief. Petitions can be filed by victims, the Division of Child Protective Services, or the Division of Adult Protective Services.

Effective: 2024

Either spouse may request restoration of their maiden or former name as part of the divorce petition or in a separate motion. The name change takes effect upon the court's final divorce decree. This applies to either the petitioner or the respondent and does not require a separate legal name change proceeding.

Effective: 2024

A spouse who has waived or released their right to alimony in a written agreement — whether made before, during, or after the marriage — has no remedy under the alimony statute. This reinforces the enforceability of prenuptial and postnuptial agreements regarding spousal support, provided the waiver was voluntary and the agreement was not unconscionable.

Effective: 2024

A pending divorce does not prevent either spouse from taking actions affecting property disposition at death (such as changing a will or beneficiary designations), but written notice must be given to the other spouse. If a spouse dies before the divorce is finalized, any property transfers made after the automatic injunction was issued can be voided by a court if deemed appropriate, unless the parties agreed otherwise in writing.

Effective: 2024