The decision to begin the divorce process is not an easy one to make. Many people contemplate the obstacles that have arisen in their relationship before they ultimately take the first steps in dissolving their marriage. When the time for reflection has ended, many questions surface. "Where do I begin? Will I have to go to Court? Do I have to sign papers?" The following is some basic information that may provide you with some answers.

    In order to obtain a divorce in Delaware, an individual must first be married. Common law marriages with their origin in Delaware are not recognized as lawful marriages under Delaware law. This means a couple of the opposite sex must have applied for and received a marriage license and have had the marriage solemnized by a celebrant, such as a minister of any recognized religion, a judge, or Clerk of the Peace.

    One begins the divorce process by separating from one's spouse.  The marital couple must be living separate or apart for a period of six months before a Court will grant a divorce. There are exceptions for situations where one spouse alleges misconduct by the other (such as physical or verbal abuse, substance abuse with children in the home, or other serious behavior that is destructive to the marital unit). One does not have to actually move to another residence in order to separate from his or her spouse. The marital couple can be separated under the same roof if one spouse moves into another bedroom and they refrain from sexual relations with one another.

    The next step is filing a Petition for Divorce in the Family Court. The individual who files receives the title of "Petitioner", and the person who is served with the Petition is called the "Respondent". To file for divorce in Delaware, the Petitioner must have been living in Delaware continuously for six months immediately prior to filing. You can also file for divorce in Delaware if your spouse (the Respondent) has resided in Delaware continuously for six months prior to the commencement of action. The divorce petition can be filed anytime after separation, but the statutory six-month separation period must run before a divorce is granted.

    The divorce petition should contain certain required information, including a certified copy of the marriage certificate, and set forth the particular relief the Petitioner is seeking. The relief sought by an individual can include property division, child support and/or custody, and alimony. The Court will not decide the types of issues at the divorce hearing. Rather, the Court will retain jurisdiction, or retain the power to later decide these issues through an ancillary hearing should the parties reach an agreement in the meantime.  Delaware is a "no-fault" divorce state, meaning that the Family Court will not consider fault when deciding property division or alimony issues.

    Obtaining a divorce is only one part of dissolving a marriage.  Frequently, many serious and emotional issues arise when people begin restructuring their families during or after the divorce process. It is often a good idea to obtain assistance from an attorney when the decision to separate has been made. Not only will an attorney be able to explain the laws to you, he or she can work with you to resolve all your domestic issues as gently and quickly as possible.

The information on this website is offered for general informational or educational purposes and does not constitute legal advice. It is our intention to keep the materials current but there is no guarantee they are up to date. Do not act or rely upon the information without seeking the advice of an attorney. Contact through this website does not create and attorney-client relationship. Our firm practices and is licensed in the following states: DE and PA.