Delaware Uncontested Divorce

This information is an overview of the uncontested Delaware divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Delaware.

To file for divorce in Delaware, either spouse must have lived in Delaware for at least six months before the action begins. The same applies for a member of the military stationed in Delaware.

Grounds for divorce in Delaware are No-Fault, which is defined as an "[i]rretrievable breakdown of the marriage and reconciliation is considered improbable..." This is demonstrated by 1) voluntary separation, 2) separation caused by a spouse’s misconduct or mental illness, or 3) separation caused by incompatibility, and 4) living apart for six months because of incompatibility.

The spouse who files is called the Petitioner; the spouse who responds is called the Respondent. Actions are filed in Family Court in the county of residence of one of the spouses.

Delaware does not allow formal legal separations.

Under Delaware law, the couple must separate, they must not share the same bedroom "or have sexual relations with one another, except for attempts at reconciliation." The couple may live in the same house, however.

In Delaware, when the Respondent contests a divorce petition, the action is automatically scheduled for a hearing because the divorce is contested. If the Respondent fails to file an Answer with 20 days of receipt of the divorce papers, or if he or she agrees to the request for divorce, the action is uncontested. In this event, the Petitioner may request the court to decide the action based on what is called "solely on the papers" that have been filed, which means without the spouses appearing in court for a hearing; or he or she may ask the court to decide after a hearing, which the Petitioner must attend and the Respondent may attend.

To file for a divorce, the Petitioner must file the following:

> A Petition for Divorce/Annulment, which identifies the spouses, the children, the relief requested, and specifies the type of divorce proceeding requested if the action is uncontested: 1) "solely on the papers" and without a hearing, or 2) with a hearing decided by a Commissioner;
> An Information Sheet Form, which identifies the particulars of the case, including whether or not the Petitioner is filing for custody, visitation, support or Protection from Abuse;
> A Division of Public Health/Vital Statistics Form, which records the particulars of the action for state records;
> A certified copy of the marriage certificate, which must be obtained from the Division of Vital Statistics in the jurisdiction where the marriage happened;
> A Request for Notice Form, which is used to effect a Summons and Petition upon the Respondent;
(This form makes provision for the Respondent to receive a copy of the Petition without service of a Summons and enter an Appearance, which means he or she agrees with the action. It also has a provision to 1) serve notice of the action by certified mail, return receipt requested and 2) for Service by Publication in the event that a missing spouse cannot be located by mail.)
> An Affidavit of Children’s Rights, which must be filed if the spouses are the parents of children under 18.
> A Separation Agreement, which, when negotiated by the spouses, spells out the terms and conditions of the property division, its assets and liabilities and which is signed by both spouses in the presence of a notary;
> A Stipulation to Incorporate the Separation Agreement Form, which incorporates and enforces the separation agreement as part of the final divorce decree;
> An Affidavit that a Party’s Address is Unknown Form, which is filed only when the Respondent’s address is not known;
> An Affidavit that a Party’s Social Security Number is Unknown Form, which is filed only when the Respondent’s Social Security Number is not known;
> Waiver of Rights under Servicemembers’ Civil Relief Act, which is filed only when the Respondent is in the military and agrees to waive his or her protection from civil litigation under the act.

When the Petitioner and Respondent are parents of children under 18, both must complete a Parent Education Class and then file:

> Certificates of Completion of Parent Education Class, which are given at the Family Court Resources Center in each of Delaware’s four counties.

After the Respondent has been served with Petition and after the couple have been separated for at least six months (except in the case of when the ground is misconduct, when there is no time limit) and after the couple have filed the Certificates of Completion of Parent Education, the Petitioner receives a Notice that the case is trial ready.

If the Petition is marked uncontested, the Petitioner files a Notice of Trial-Readiness and he or she had 20 days to file the following:

> Request to Proceed without a Hearing, which must be filed with:
> An Affidavit in Support of Request to Proceed without a Hearing, which certifies that the spouses have "not occupied the same bedroom or had sexual relations with each other in the past 30 days."

After the Request to Proceed without a Hearing and the Affidavit in Support of Request to Proceed without a Hearing have been filed, the case papers are forwarded to a Commissioner, who decides whether or not to grant the Petition without a hearing based "solely on the papers," and the spouses receive copies of the Order and Decree of Divorce. If he or she does not grant the petition, he or she may schedule a hearing to take testimony.

If the Petitioner elects to proceed with a hearing, or if the Respondent contests the divorce, the Petitioner receives a Notice of Hearing. He or she may elect to proceed on the papers by filing a Request to Proceed without a Hearing anytime at least seven days prior to the scheduled hearing and by notifying the other spouse.

If the hearing is held, the Petitioner must present an Affidavit of Non-Military Service, which is completed only if the Respondent is not in the military.

As in the case of a divorce solely on the papers, a divorce with a hearing cannot be granted if the spouses "have occupied the same bedroom or had sexual relations with each other within 30 days of (the) hearing."

Likewise, if the divorce is granted, the Commissioner forwards a copy of the Order and Decree to each spouse. If the parties request the court to retain jurisdiction over "ancillary matters," such as support, they receive a document detailing this.

These ancillary matters may include property division and/or alimony. If this is the case, the Petitioner has 30 days from the date of the Divorce Decree to file a Rule 16 (c) Financial Report Form. Both parties must complete the same form. For purposes of this form, the Petitioner is the person who completes the form first, even if he or she is not the person who filed the Petition for Divorce, and the Respondent is the person who completes the form second. After the Petitioner completes the Rule 16 (c) form, he or she must complete an Affidavit of Mailing, swearing under oath that he or she has mailed the original to the Respondent.

After the Respondent receives the original Rule 16 (c) form, he or she has 30 days from the date of mailing to respond. The Respondent must then file the original notarized Rule 16 (c) form with the court and forward a copy to the Petitioner or his or her attorney. After doing this, he or she must also file an Affidavit of Mailing, swearing under oath that he or she has mailed the original to the Petitioner.

The Rule 16 (c) form is very long, and it takes quite some time to complete. Both parties are well advised to make copies of the completed form.

Failure to complete the form or attempts to secret assets means the court can impose sanctions, including the former spouse’s attorney costs, or it can accept one spouse’s information and ignore any other information, or it can enter a default judgment against one spouse. This can take the form of a Default Judgment or Dismissal. If this happens, the spouse seeking the default must prepare a Form of Order.

If the former spouses request the court determine property division, alimony, counsel fees, court costs "and/or any other ancillary relief allowed under Title 13 § 1507 (f)," a hearing will be held after the Rule 16 (c) Financial Report Form is completed. Before the hearing the court may request additional information at a pre-trial conference. Failure to comply with the court’s request may result in the same penalties listed above.