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Delaware Information

Delaware Frequently Asked Questions

Who may file for Divorce?

Answer: In order to file for divorce in the State of Delaware, either you or your spouse must have resided (lived) in Delaware for at least 6 months or have been stationed in Delaware as a member of the military for at least 6 months.Furthermore, before you file for divorce, you and your spouse must be legally separated, unless you are filing on the grounds of spousal misconduct. In order to be legally separated, you and your spouse must not share the same bedroom or have sexual relations, with the exception of reasonable attempts of getting back together. You still can be separated if you live in the same house so long as you do not share the same bedroom with or do not have sexual relations with your spouse.

How Long Must I Be Separated from My Spouse before I Can Have My Divorce Hearing?

Answer: The Court will not schedule your Court Hearing until you have been separated for at least 6 months, unless you are filing for divorce on the grounds of misconduct. If you are filing for divorce on the grounds of misconduct, then you do not have to be separated for any specified period of time.

Where Do I File for Divorce or Annulment?

Answer: You must file in the county of Delaware in which either you or your spouse lives.

In Kent County: In New Castle County: In Sussex County:
Family Court
400 Court Street
Dover, DE 19901
New Castle County Courthouse
Family Court
500 North King Street
Wilmington, DE 19801
Family Court
22 The Circle
Georgetown, DE 19947

What Is DivorceToday.com?

Answer: DivorceToday.com is a divorce-form service, started by divorce lawyers in 1999, that has helped thousands of Americans obtain simple, fast, and inexpensive uncontested divorces. We have developed simple, straightforward forms and instructions that will help you act as your own representative, without the time and expense of hiring a divorce attorney. Our service is appropriate for uncontested cases in which you and your spouse have resolved all issues prior to the beginning a court case.

Delaware Law Regarding The Equitable Distribution Of Pensions And Other Retirement Plans In Divorce

Delaware law provides that " 'marital property' means all property acquired by either party subsequent to the marriage *182 except … [p]roperty excluded by valid agreement of the parties." 13 Del.C. § 1513(b)(3).

Pensions which accrue during a marriage, whether or not they are vested at the time of divorce, are normally considered to be marital property. Donald R.R. v. Barbara S.R., Del.Supr., 454 A.2d 1295, 1296 (1982); Robert C.S. v. Barbara J.S., Del.Supr., 434 A.2d 383, 387 (1981). See Gregg v. Gregg, Del.Supr., 510 A.2d 474, 480 (1986); Smith v. Smith, Del.Fam.Ct., 458 A.2d 711 (1983).

A spouse's waiver of his or her interest in a pension or other retirement assets may be waived in a marital property settlement agreement. This is precisely what occurred in the case of Memmolo v. Memmolo, 576 A.2d 181 (Del 1990), where the court held that the Wife had waived any claim to the Husband’s military pension.

Typically, pensions and other retirement assets are divided through a qualified domestic relations order (QDRO). In cases that are settled by agreement of the parties, it is essential for the non-participant spouse to include a provision in the agreement that specifically states that he or she is entitled to survivorship benefits. The Supreme Court of Delaware held that a QDRO without a survivorship clause is presumed to exclude survivor benefits "as a matter of law." See Glenn v. Schlerf, 1993 WL 385030, *2 (Del.Supr.1993)


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