Family Law

To file a divorce in Delaware, a divorce petition, certain required forms, and filing fees are filed in the Family Court in the county in which at least one spouse resides. One of the spouses must have been a resident in Delaware for at least 6 months prior to filing the petition. Your spouse must be notified that the divorce petition has been filed. If your spouse is cooperating with the divorce, they can file an Affidavit of Appearance to show that they have received a copy of the petition. Otherwise, a summons and the petition must be served on your spouse to give them notice of the divorce filing. If you have a divorce attorney, they will file the required documents for you. 

Before a divorce application can be made, Delaware generally requires that the parties be separated for a period of six months. Once the application is made, a divorce can be completed in as little as 180 days if both parties are in agreement about the details of the divorce. Most divorces take longer while the parties negotiate and agree on matters such as property division and alimony. If divorcing spouses have not reached an agreement on these matters related to their divorce by the end of their six-month separation period, the Family Court will divorce you and then schedule a hearing to determine how the remaining issues should be resolved.

The vast majority of divorces are granted on grounds of incompatibility or voluntary separation. Delaware is a “no-fault” state when it comes to divorce, meaning that the Family Court will not take into consideration the fault of either party when the Court equitably distributes marital property or determines alimony or spousal support. However, if a divorce is granted on grounds of misconduct, such as infidelity, abuse, or mental illness of a spouse, the parties are not required to be separated for a period of 6 months. The prospect of being divorced more quickly, is therefore, the only perceived benefit of filing on misconduct grounds. The caveat in this scenario of a fault-based divorce filing is if the respondent, or the spouse answering the petition, denies the allegations of misconduct, the Court will need to hold a hearing to determine if findings of misconduct can be made.

An annulment states that the marriage never legally existed whereas a divorce terminates a marriage that did legally exist. Annulment is only possible in certain limited situations, such as when one of the parties was legally too young to marry, when one of the parties entered into the marriage based on a fraudulent act or misrepresentation by his or her spouse, or when one of the parties entered into the marriage under duress. Usually, an annulment can only be granted if the filing spouse files a petition within 90 days of the date of marriage. Divorce is much more common than annulment.

Delaware law requires that the parties be separated for a minimum of 6 months before the Family Court will divorce them. “Separation” is defined as no longer sharing a bedroom or having sexual relations with one another. However, Delaware does not recognize a legal status of separation.

You can get a divorce without a lawyer, but it is advisable to get a lawyer to protect your rights. Divorces can be complicated. They involve important matters such as your home, your financial security, and custody of your children, all of which is being negotiated at a very stressful and emotionally difficult time. An experienced divorce lawyer, like the family law attorneys at Morris James, will guide you through the steps of a divorce and protect your legal rights as you move forward.

Divorcing spouses sometimes agree how to divide their marital property in a property settlement agreement, which is then approved by the Family Court. If they do not agree, the Court will decide how the property is divided. Delaware is an equitable distribution state. This means that the Court will divide marital property between the spouses in a fair and equitable manner, taking into account factors such as the length of the marriage; the income, job skills, and employability of the spouses; the economic and other circumstances of each party; and a spouse’s contributions to the marital property. 

With some limited exceptions, all assets acquired during the marriage, as well as all debts incurred during the marriage, regardless of whether the asset or debt is titled jointly in both spouses’ names or individually titled in one spouse’s name, are presumed to be marital and therefore subject to division by Family Court. The limited exceptions include property acquired by gift or inheritance, property that is acquired in exchange for pre-marital property, passive gains on pre-marital property, or property excluded by valid agreement of the parties, such as a premarital agreement. There are some assets that may be considered partly marital and partly non-marital, such as retirement accounts that were funded both before and during the marriage, or a premarital home with a mortgage that was paid with marital funds. This means that if you owned a house or investment account before you are married, your spouse may be entitled to part of the increase in value of property acquired prior to the marriage.

You may qualify to receive interim or permanent alimony from your former spouse. In order to qualify for alimony under Delaware law, you must first demonstrate that you are dependent upon your former spouse to meet your reasonable monthly expenses despite being appropriately employed consistent with your training, skills, and education. The Family Court must also find that the former spouse has an ability to pay support to the spouse seeking alimony while also meeting his or her own needs. When both findings are made, the Court is able to set a monthly support obligation.

Divorcing spouses sometimes agree on alimony in a settlement agreement, which is then approved by Family Court. If they do not agree, the Court will decide how much alimony is granted. If the Court makes a preliminary finding of dependency of one spouse and an ability to pay by the other, the Court will set the alimony amount after considering several relevant factors, including, the length of the marriage; the standard of living established during the marriage; the financial resources or sources of income of the dependent spouse; whether the dependent spouse needs additional education or training to find employment, or if the dependent spouse has foregone employment opportunities during the marriage; and the other spouse’s ability to meet his or her own needs while paying alimony. Alimony is modifiable based upon a real and substantial change of circumstances of either party.

Alimony is a rehabilitative tool. In Delaware, if parties were married for less than 20 years, a spouse may be entitled to alimony for one-half of the length of the marriage. If the parties were married for 20 years or more, a spouse may have a lifetime alimony entitlement, but alimony is always subject to modification based on a real and substantial change of circumstances, or termination, such as when either spouse dies, or the spouse receiving alimony cohabitates or remarries.

Child support is financial support of the minor children of a marriage, not the ex-spouse. Spousal support is paid to your spouse for an indefinite period of time while you live separate and apart from one another but your divorce has not yet been finalized, whereas alimony is the term used to describe the money paid from one spouse to another after a divorce and may terminate after a set period of time if the marriage lasted under 20 years. Alimony and spousal support are intended to support the spouse, not the children, after a divorce, typically ordered by the Family Court to maintain a spouse’s standard of living or because they have foregone their career or ability to earn during the marriage in support of their spouse or family. While the Court considers the standard of living established during the marriage when they are setting alimony, the goal is not necessarily to equalize the standard of living of the spouses. Therefore, just because your former spouse encounters an increased standard of living after your divorce due to promotion or career change, you will not necessarily benefit from the increased standard of living if the current alimony obligation allows you to meet your reasonable monthly expenses consistent with the standard of living you enjoyed during the marriage. This is different from child support because children may always benefit from increased earnings of either parent.

Litigants are encouraged to work toward creative solutions to resolve matters related to their divorce outside of Court. Accordingly, divorcing spouses are generally required by the Family Court to engage in mediation or third-party arbitration prior to the final Court hearing. Through mutual financial disclosure and negotiation, your attorneys at Morris James will assist you in reaching a fair and amicable resolution as efficiently as possible. If an agreement cannot be reached, our team at Morris James is equally proficient in the courtroom at obtaining excellent results for our clients.

A marital agreement could refer to a number of different agreements related to a marriage, such as a premarital/prenuptial agreement or a post-marital/postnuptial agreement. In general, a marital agreement is a contract between two people who are married or about to be married that sets out agreed rights and obligations of both parties.

A premarital agreement (commonly referred to as a “prenuptial agreement”) is a legal agreement entered into by two people in anticipation of getting married in which they agree to certain terms, typically affecting their rights after marriage in the event of death or divorce. Certain requirements must be met to ensure the enforceability of the premarital agreement, including independent legal counsel for each party, as well as a fair and adequate disclosure of each party’s assets and liabilities at the time the premarital agreement is entered into.

A postnuptial agreement is a contract entered into by married spouses about matters such as spousal support and the division of property in the event of a divorce. It is like a premarital agreement but it is entered into after the marriage rather than before. 

You may want a premarital or post-marital agreement to protect your assets, as part of a wealth planning strategy, or to give you financial certainty in the event of your divorce. Premarital and postnuptial agreements are particularly important if you have significant assets, business interests, have children from a prior marriage, or live in a community property state. If you divorce your spouse and you do not have a premarital or postnuptial agreement, your assets will be out of your control and may be divided by the Family Court’s discretion.

Where children live, go to school, and how much time they spend with each parent after divorce are important considerations for most divorcing parents with minor children, but it is not included as part of the proceedings when you file a petition for divorce in Delaware. You will need to file a separate petition for custody with the Family Court if you have minor children and would like the Court to decide child custody.

Legal custody is the ability to make legal decisions on behalf of the child, including medical or educational decisions. Residential placement (commonly referred to as “physical custody”) determines which parent the child lives with. The Family Court can order that legal custody and/or residential placement of a child be shared between the parents, be given to one parent only, or a combination of these arrangements. If one party is granted primary residential placement, the other parent will usually be entitled to frequent and meaningful visitation with the child(ren).

In Delaware, both parents have equal rights to their children. The parents may agree on a child custody arrangement (subject to Court approval) or the Family Court will decide legal custody and residential placement based on the best interests of the children. The Court will consider factors such as the child’s relationship with each parent and other family members, their physical and emotional wellbeing, the wishes of the parents and children, the children’s education, and the financial and practical ability of each parent to care for the child. It is important to get reliable legal representation, like the family law attorneys at Morris James, when negotiating, or fighting for, the custody of your children.

The wishes of the child as to such child’s custodian and residential arrangement comprise just one of the several factors that contribute to the Family Court’s best interests determination. The Court must consider all relevant factors and may afford different weight to the child’s wishes, depending on the age and maturity level of the child. The Court has discretion and will usually afford more weight to this factor if the child is older and able to clearly articulate his or her wishes for residential placement, but it is ultimately the balance of all factors that are required to make a custody arrangement in the best interests of the child.

To file for custody of your children in Delaware, a custody petition, certain required forms, and filing fees are filed in the Family Court in the county in which the child primarily resides. Generally, the child must have been a resident in Delaware for at least 6 months prior to filing the petition. You will not be able to file a petition for custody against the other parent if both parents are still residing in the same home. A petition for custody can be filed as soon as the parents establish separate residences.

When the Family Court makes its final decision, or approves an agreed custody arrangement, you will be bound by it, unless both parents agree to deviate from the Court’s order or one parent seeks and is granted a modification through the Court. Parents who mutually agree to modify an existing custody arrangement should always make such agreements in writing, and file the updated order with the Court so that the agreement can be enforceable. If the parties are not in agreement to deviate from the current residential arrangement, or there is a dispute regarding a legal decision affecting the child, the parent seeking to modify the current order must demonstrate that such modification is in the best interests of the child. It is generally more difficult to modify an existing custody order the closer in time the petition for modification is filed to the date of the last custody order.

Usually, the Family Court is reluctant to stop a parent from seeing their child or unreasonably restricting a child’s access to other relatives. However, in limited circumstances, such as where the Court believes someone is abusive or dangerous, it will restrict access to the child in the best interests of the child. In cases where the Court finds it is in the child’s best interest to restrict a parent’s access, the Court may limit visitation or implement safety measures, such as requirements for supervision during visitation. The level of supervision can range depending on a number of factors relevant to each case, sometimes taking place informally at a parent’s home while being supervised by a third-party friend or relative, and in more severe scenarios, taking place at a supervised state facility.

Parties to a custody order can rely on law enforcement to help enforce the custody arrangement when one parent is not following the order. If a parent continues to violate the order, the other parent may file a petition for Rule to Show Cause with Family Court. If the Court finds that a parent has meaningfully violated a valid custody order without justification, the Court has discretion to enforce the existing order, modify the order, and/or enter sanctions against the noncompliant parent.

The duty to support a child under the age of 18 years rests primarily upon the child’s parents.

Child support is determined by the Family Court to suit the circumstances of each individual family, and ordered in a child support order. The Court will consider the needs of the children and the income of each parent. For guidance, the Delaware Courts provide a Delaware Child Support Formula Calculation to give an estimate of the child support that may be ordered but this is purely an estimate and should not be relied upon. The child support formula is a “rebuttable presumption.” Your attorney will help you to present all the relevant facts of your situation to ensure that your circumstances are fairly represented to the Court. 

Under Delaware law, parents have a duty to support their children until the age of 18. However, if a child is still enrolled in high school, this duty is extended until the child’s high school graduation or 19th birthday, whichever event first occurs.

It is a common misconception that there will be no child support obligation if the parents share time equally with their children. However, child support is intended to equalize the standard of living that the children enjoy between both households. Therefore, even if the parents have the child(ren) for the same amount of time, there may still be a child support obligation if there is a disparity in the parents’ incomes

There are certain jurisdictional requirements that must be met to file for child support, so you should first always consult with an attorney to ensure that filing for child support in Delaware is the appropriate jurisdiction, as opposed to a jurisdiction of another state. You will not be able to file a petition for child support against the other parent if both parents are still residing in the same home. A petition for child support can be filed as soon as the parents establish separate residences.

Child support orders can always be modified if there is a substantial change of circumstance through no wrongful conduct of the parent seeking an increase or decrease in the support obligation. Most commonly, modifications of child support are triggered by changes in a parent’s income, daycare or private school tuition changes, a change in the custody arrangement, or the birth of another child that one parent has a duty to support. Parties of a child support order are obligated to notify the other parent of any changes in their incomes that may warrant a change in the child support calculation. Absent notice of a substantial change of circumstances, either parent may file a petition for modification after 2½ years passed since the last child support order.

A legal guardian is appointed by the Family Court to care for, and have legal responsibility for, a child during the child’s minority. 

Any person or persons at least 18-years-old may petition the Family Court for a guardianship order regarding a child who is not the adult person’s or persons’ child. However, if you are not a relative (sibling, grandparent, aunt, uncle, first cousin, great-grandparent, grandaunt or granduncle, step-sibling or half-sibling), the Division of Family Services must assess the placement and provide its findings to the Court.

In some cases, the child’s parents may agree to the guardianship and the Family Court can enter an order by consent. If the parents do not agree with the guardianship, the Court must find that the child is dependent, neglected, or abused in each parent’s care, and that it would be in the best interests of the child for the guardianship to be granted. Depending on the circumstances of the case, the Court may grant the guardianship but also find it appropriate to establish a schedule for visitation with the child’s parents to ensure the parent-child relationship is supported.

Generally, a guardianship of a minor will remain in place until rescinded by Family Court, unless it terminates upon the guardian’s death, adoption of the child, or when the child reaches the age of majority.

Under Delaware law, an order of guardianship may be rescinded by agreement of the parent or parents seeking recission and the guardian(s) of the child. If the guardian(s) does not agree that custody of the child should be returned to the parent(s), the parent may file a petition with Family Court. An Order of guardianship may be rescinded by the Court if the guardianship is no longer necessary for the reason determined at the time the guardianship was established.

When an individual other than a parent has custody of a child through a guardianship order, that person is charged with the custody and care of the child. The child usually resides with the guardian or guardians. Alternatively, when an order for third-party visitation is entered by the Family Court, custody remains with the child’s parent(s), but the parent(s) is ordered to permit visitation with the third-party and the child because the Court has determined that visitation to be in the best interests of the child.