Divorce can be a lengthy and emotionally draining process. One of the best kept secrets of divorce lawyers is that their clients are never entirely zealous in “making him pay” or “demanding she give me everything.” Many contested divorces are nasty procedures, but divorce does not have to be that way.
The rate of divorce settlements in this country increases on an annual basis. As many as 90% of divorces settle eventually. Many do not settle immediately. For those spouses who are able to come to an agreement early, the divorce process can be less expensive and less stressful. Spouses who have the ability to sit down together and agree on the terms of a divorce may qualify to seek an uncontested divorce.
This article will explain the nature of an uncontested divorce and Delaware uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested Divorce in Delaware Defined
The root of Delaware uncontested divorces is agreement. In a normal contested divorce, a judge must hear evidence and rule on each issue; however, an uncontested divorce is different because the parties, rather than the court decide the terms of their own divorce. Prior to the court granting an uncontested divorce, it must find that the spouses have agreed on all of the issues in the divorce lawsuit. This agreement results in a simplified and less expensive divorce process.
Unlike many states, Delaware does not have a separate uncontested divorce procedure. Instead, spouses seeking an uncontested divorce in Delaware must file for divorce normally and then the court will categorize the divorce as either contested or uncontested. That said, Delaware takes extra steps to accommodate uncontested petitions by waiving final hearings where requested and where parties have agreed to a separation agreement.
Requirements for Seeking a Delaware Uncontested Divorce
To file for uncontested divorce in Delaware, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced Delaware divorce attorney or family lawyer.
The divorcing spouses must meet the Delaware state residency requirement. In general, at least one of the spouses must have resided in Delaware for at least six months or more prior to filing.1 Special residency rules apply to members of the armed forces temporarily stationed in Delaware.
The spouses must also satisfy the grounds for divorce. Delaware is a no-fault divorce state. This means that it does not matter whether one of the spouses caused the circumstances leading up to divorce. All that matters is that the marriage is irretrievably broken. This means prior to seeking a divorce the spouses must either be currently living separately or are incompatible with each other.2
The final ingredient to a Delaware uncontested divorce is agreement between the spouses. The required agreement be legally-binding and in writing in the form of a separation agreement. This separation agreement between the spouses should specify, in detail, the terms of the divorce.
A fully-completed separation agreement will address at least all of the following issues in the divorce:
- Division of property (including the marital home, cars, and pets);
- Division of marital debts;
- Spousal support; and
- If applicable, child custody, visitation, and child support.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is often beneficial for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and maybe helpful in filling out the required divorce paperwork. Prior to signing any separation agreement(or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you.
The Process for Filing for an Uncontested Divorce in Delaware
Once you and your spouse have decided to file for an uncontested divorce, the general flow of the process is as follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly.
- For spouses seeking an uncontested divorce in Delaware without the assistance of an attorney, the first step will be agreeing on the terms of the divorce and preparing the required divorce paperwork. Fortunately, the Delaware Courts’ website has sample divorce forms that you and your spouse can use to file for divorce in any Delaware court.3
- Next, you and your spouse must determine “venue,” which means you need to figure out which court you need to file your divorce in. You should file for divorce in the Delaware Family Court sitting in the county in which you meet the residency requirement.
- One spouse should file a petition for divorce and state in the petition that it is not contested. Additional directions for filing the petition can be found in Rule 101 of the Delaware Family Court Rules and in the Delaware divorce code.4
- The filing spouse must then serve the non-filing spouse by personally delivering a copy of the divorce paperwork to him or her. The responding spouse should then file an answer admitting that petition is uncontested, that the marriage is irretrievably broken and agree to the terms of the separation agreement.
Once the paperwork is filed, the spouses should file a request for finalization and affidavit which reaffirms the petition and verifies service of process. This will allow the court to rule on the divorce without holding a hearing.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.
- 13 Del. C. § 1504.
- 13 Del. C. § 1505.
- Forms, DELAWARE COURTS
- Del. Family Ct. Civ. R. 101 and 13 Del. C. § 1507.