Delaware Divorce Laws

Starting divorce proceedings is an emotionally difficult step, but when the time comes to do so, it helps to understand the state laws surrounding the process.

Who Can File for Divorce and On What Grounds

If you are going to file for divorce in Delaware, you must meet the state’s residency requirement. To file in Delaware, either the petitioner or respondent must have been living in the state continuously for six or more months. The only exception is for members of the military who are on deployment. Divorce can be filed in the county where either individual lives.

Delaware is not a no-fault state, but the laws do allow divorce based on a decree stating that the marriage is irretrievably broken and that reconciliation is not probable. Acceptable reasons for this include:

  • Voluntary separation
  • Separation caused by a respondent’s misconduct
  • Separation due to the respondent’s mental illness
  • Separation due to incompatibility

Periods of separation are still considered separation even if the couple has tried to reconcile by temporarily living together. However, they cannot sleep in the same bedroom or engage in physical relations in the 30 days prior to filing in order to qualify.

Sometimes determining residency for members of the military is confusing. That is why many couples with one individual in the military will use an attorney when they file for divorce. This ensures they follow the current military family law throughout the process.

Property Division

Delaware follows the equitable distribution model when dividing property. If the parties cannot reach a settlement about their property and debts, the courts will declare the property award based on what they deem is fair, not necessarily equal. Factors considered may include:

  • Length of the marriage
  • Prior marriages of either party
  • Health, station, age, amount and sources of income, vocational skills, liabilities, estate, and needs of each party
  • Presence of any alimony
  • Possibility for future acquisitions of capital assets or income
  • Each party’s contribution to the acquisition, preservation, depreciation, or appreciation of the property, including the homemaker’s contribution
  • Total value of property set apart to either party
  • Each party’s economic circumstances when the division of property occurs, including the desire to give the family home to the individual who has the care of the children
  • Any property acquired by gift
  • Debts of either party
  • Tax consequences of the property division

Property not included in the marital property includes:

  • Property given by gift, devise, or bequest from someone other than the spouse
  • Property acquired in exchange for property acquired before the marriage
  • Any agreement between the parties to exclude certain property
  • Increase in value of property acquired prior to the marriage

Child Custody

Child custody arrangements in the state of Delaware are made according to the best interests of the child, and the courts will encourage parents to work together to make this determination whenever possible. Factors considered in a court decision will include:

  • Wishes of the parents
  • Wishes of the child
  • Interaction and relationship with the child and his or her parents, grandparents, siblings, or other residents of the households, including any person who might significantly affect the child’s best interests.
  • Child’s adjustment to home, community, and school
  • Mental and physical health of all involved in the case
  • The parents’ past and present compliance with their rights and responsibilities to the child
  • Any evidence of domestic violence
  • Any criminal history on behalf of a parent or any resident of either household

The courts will not make the decision based on the parent’s gender or any conduct that does not direct affect the child’s best interests or the individual’s relationship with the child.


Some cases of divorce in Delaware will end up with a need for one spouse to support the other. In these instances, factors considered will include:

  • Financial resources of the party seeking support
  • Time and necessary expense of education required for employability
  • Standard of living during the marriage
  • Duration of the marriage
  • Age, emotional condition, and physical condition of both individuals
  • Financial contributions made toward the other party’s education or career development
  • Tax consequences
  • Postponement of education or career development during the marriage
  • Ability of the other party to pay alimony and meet his or her needs

For child support, the state believes that both parents need to equally support their children’s financial needs. They split support obligations based on the percentage of income formula.