Filing For Divorce in Delaware

1. What are the residency requirements for filing for divorce in Delaware?  
You or your spouse must have lived in the state or been stationed with the military in the state for at least six months before you file for divorce.  

2. Does Delaware have a waiting period?       
No, there’s not waiting period in Delaware. If either you or your spouse argues that your marriage is not irretrievably broken, the court may delay a final ruling to give you time to seek counseling, but even that delay can’t go beyond 60 days.  

3. Does the state have grounds for divorce?  
The court will grant a divorce if it finds your marriage is irretrievably broken, meaning there’s no hope you’ll get back together. Delaware will consider your marriage irretrievably broken if one of the following is true:

• You and your spouse have voluntarily separated.
• You and your spouse have separated because of your spouse’s misconduct.
• You and your spouse have separated because of your spouse’s mental illness.
• You and your spouse have separated because you are incompatible.  

The court will consider you to be separated as long as you and your spouse have not occupied the same bedroom or had sex with each other in the 30 days before the court hears your petition for divorce.  

4. How does Delaware determine the division of property?    
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. The court will divide your marital property however it decides is most equitable, or fair. To determine what that is, the court will consider:

• How long you were married.
• Whether you or your spouse was previously married.
• You and your spouse’s ages, health, amount and sources of income, skills, employability, debts and needs.
• Whether property is being awarded instead of or in addition to alimony.
• You and your spouse’s opportunities for future income.
• How you and your spouse helped or hurt your chances to acquire marital property, including whether one of you contributed as a homemaker or spouse.
• The value of you and your spouse’s individual property.
• You and your spouse’s economic circumstances, including whether one of you should be awarded your home so you can live there with your children.
• Whether any property was acquired as a gift (except gifts that are considered non-marital property — see below.)
• You and your spouse’s debts any tax situation that might arise as a result of giving property to you or your spouse.  

Delaware considers everything marital property except:

• Property that you acquired before you were married.
• Property that you acquired by gift or inheritance — unless it was a gift between you and your spouse. Then it becomes marital property.
• Property that you acquired before you were married.
• Property that you and your spouse agree to leave out of the discussion.
• Any increase in the value of property that you acquired before you were married.