Delaware Divorce: Filing, Grounds, and Process

Delaware recognizes a single formal ground for divorce: irretrievable breakdown of the marriage under 13 Del. C. Section 1505. However, irretrievable breakdown can be established through multiple conditions — including both no-fault separation and fault-based misconduct such as adultery, abuse, and desertion. Understanding these conditions, along with the rules around residency and contested issues, is essential.

This article explains how to file for divorce in Delaware, what the court requires, and what to expect as your case moves forward.

Residency Requirements

At least one spouse must have been a bona fide resident of Delaware for at least six months before filing. Under 13 Del. C. Section 1504, the filing spouse must demonstrate that Delaware is their true home and that they intend to remain.

If neither spouse meets this requirement, the court lacks jurisdiction. Military members stationed in Delaware may establish residency, but the six-month clock starts when they establish domicile — not when they arrive on orders.

Grounds for Divorce: Irretrievable Breakdown

Delaware recognizes one formal ground: irretrievable breakdown of the marriage (13 Del. C. Section 1505). This ground can be established through several conditions:

No-Fault Conditions

1. Voluntary separation for at least six months. The spouses have lived separate and apart for at least six months before filing. “Separate and apart” does not require living in different homes. Courts recognize that spouses can live separately under the same roof if they have ceased functioning as a married couple — no shared meals, no shared bedroom, no shared finances, and no holding themselves out as married.

2. Both spouses agree the marriage is irretrievably broken. If both parties stipulate to irretrievable breakdown, no separation period is required.

Misconduct-Based Conditions

Under 13 Del. C. Section 1505(b), irretrievable breakdown can also be established through the respondent’s misconduct, including:

• Adultery
• Bigamy
• Conviction of a serious crime with imprisonment
• Physical or verbal abuse against the spouse or children
• Desertion (abandonment)
• Willful refusal to perform marital obligations
• Habitual drunkenness or drug use
• Mental illness causing separation

When filing based on misconduct, the petitioner must show that the misconduct caused the separation and that reconciliation is improbable.

Where to File and Filing Fees

Divorce petitions are filed in the Family Court of the county where either spouse resides. Delaware has three counties — New Castle, Kent, and Sussex — each with a Family Court location.

The filing fee is $165 (plus a $10 court security fee). If you cannot afford the fee, you may apply for a fee waiver (in forma pauperis status) by submitting a financial affidavit. Additional costs may include service of process fees, certified copies, and motion fees.

Serving the Other Spouse

After filing, you must serve the petition on your spouse. Delaware allows service by personal service through the sheriff or a private process server, acceptance of service, certified mail in some circumstances, or publication if the spouse cannot be located after diligent efforts.

The responding spouse has 20 days to file an answer. If no answer is filed, you may seek a default judgment.

Uncontested vs. Contested Divorce

An uncontested divorce occurs when both spouses agree on all issues — property division, alimony, custody, and child support. You submit a stipulated agreement to the court, and the judge reviews it to confirm it is fair and voluntary. Uncontested divorces can be finalized within a few months.

A contested divorce occurs when the spouses disagree on one or more issues. Contested cases involve discovery, mediation, and potentially a hearing before an ancillary commissioner or a trial.

The Ancillary Commissioner Process

Delaware uses ancillary commissioners to handle contested issues. An ancillary commissioner is an attorney appointed by the court to hear evidence, make findings, and issue recommendations on disputed matters such as property division, alimony, and debt allocation.

The process works as follows:

1. Discovery. Both parties exchange financial information — income, assets, debts, and expenses.
2. Commissioner hearing. The commissioner conducts a hearing where both parties present evidence and testimony.
3. Commissioner’s report. The commissioner issues written findings and recommendations.
4. Exceptions. Either party may file exceptions to the report. The judge then reviews the report and exceptions and issues a final order.

Property Division: Equitable Distribution

Delaware is an equitable distribution state. Under 13 Del. C. Section 1513, the court divides marital property fairly — though not necessarily equally — based on statutory factors.

Marital property includes most assets and debts acquired during the marriage, regardless of title. Separate property — assets owned before the marriage, inheritances, and gifts to one spouse — is generally excluded, as long as it has not been commingled.

The court considers the length of the marriage, the age and health of each party, income and employability, each party’s contribution to or dissipation of marital property, tax consequences, and each party’s debts and economic circumstances.

For a general overview of property division systems, see our guide on community property vs. equitable distribution.

Alimony

Under 13 Del. C. Section 1512, the court may award alimony to either spouse. Delaware recognizes temporary alimony (during the proceedings), rehabilitative alimony (for a set period to allow a spouse to become self-supporting), and permanent alimony (reserved for long-term marriages where one spouse cannot become self-supporting).

Mandatory Parenting Education

If you have minor children, both parents must complete a parenting education course covering the impact of divorce on children and co-parenting strategies. The court will not finalize the divorce until both parents have filed their certificates of completion.

Custody and Child Support

Custody is determined based on the best interest of the child under 13 Del. C. Section 722, considering factors such as each parent’s wishes, the child’s relationships, adjustment to home and school, and the mental and physical health of all parties. For a detailed analysis, see our article on Delaware child custody: best interest factors.

Child support is calculated using the Melson Formula, a model developed in Delaware that accounts for each parent’s income, the cost of raising the child, and the child’s standard of living. Delaware was the first state to adopt this formula and remains one of only a few states that use it.

Mediation

Delaware Family Court encourages and often requires mediation before contested issues go to a hearing. A neutral mediator helps the spouses negotiate a resolution. Mediation is less adversarial, less expensive, and often faster than litigation. Even when it does not produce a full settlement, it often narrows the issues in dispute.

For more on mediation, see our article on divorce mediation vs. litigation.

Timeline

• Uncontested divorce: Approximately 2 to 4 months after filing if all paperwork is in order.
• Contested divorce: 6 to 18 months or longer, depending on the complexity of the case.

The mandatory six-month separation period (if the spouses do not jointly agree to irretrievable breakdown) must be completed before filing, so the total time from separation to final divorce can be a year or more.

What to Do Next

1. Confirm residency. Make sure you or your spouse has been a Delaware resident for at least six months.
2. Determine your condition. Decide whether you and your spouse can agree that the marriage is irretrievably broken (no separation required), whether you have been separated for six months, or whether misconduct-based conditions apply.
3. Gather financial documents. Collect records of income, assets, debts, bank accounts, retirement accounts, real estate, and insurance policies.
4. Complete the parenting class. If you have minor children, enroll early to avoid delays.
5. Consult a Delaware family law attorney. An experienced attorney can explain how equitable distribution and the Melson Formula apply to your case. Schedule a free consultation to discuss your options.

For a broader overview of the divorce process, see our complete guide to divorce.

Frequently Asked Questions

Can I file for divorce in Delaware if my spouse lives in another state?

Yes, as long as you meet the six-month residency requirement. However, the court may have limited jurisdiction over your out-of-state spouse’s property or income, which can complicate property division and support orders.

Does Delaware allow fault-based divorce?

Delaware has one formal ground — irretrievable breakdown — but that ground can be established through misconduct such as adultery, abuse, desertion, and other fault-based conditions. So while Delaware does not have separate “fault grounds” in the traditional sense, fault-based conduct is relevant to proving that the marriage has broken down. Misconduct may also be relevant to property division or custody.

How much does a divorce cost in Delaware?

The filing fee is $165 (plus a $10 court security fee). An uncontested divorce without an attorney may cost only the filing fee plus the parenting class fee. A contested divorce with attorneys, discovery, and hearings can cost $5,000 to $20,000 or more.

Can we live in the same house and still be “separated” for divorce purposes?

Yes. Delaware courts recognize that spouses can live separate and apart under the same roof. You must demonstrate that you have ceased functioning as a married couple — separate sleeping arrangements, separate finances, no shared meals, and no holding yourselves out as married.

What is the Melson Formula for child support?

The Melson Formula is Delaware’s method for calculating child support. It considers each parent’s net income, a self-support allowance for each parent, the child’s basic needs, and a standard-of-living adjustment. It is more detailed than the income shares model used in most states and ensures both parents can meet their own basic needs while supporting the child.