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Divorce Law
§ 1504. Jurisdiction; residence; procedure.
(a) The Family Court of the State has jurisdiction over all actions for
divorce and annulment of marriage where either petitioner or respondent, at
the time the action was commenced, actually resided in this State, or was
stationed in this State as a member of the armed services of the United
States, continuously for 6 or more months immediately preceding the
commencement of the action.
(b) The procedure in divorce and annulment shall conform to the rules of the
Court where the same do not contravene this title.
(13 Del. C. 1953, § 1501; 58 Del. Laws, c. 349, § 1; 59 Del. Laws, c. 350, §
1; 60 Del. Laws, c. 297, § 3; 60 Del. Laws, c. 333, § 2.)
§ 1505. Divorce; marriage irretrievably broken and
reconciliation improbable; defenses; efforts at reconciliation.
(a) The Court shall enter a decree of divorce whenever it finds that the
marriage is irretrievably broken and that reconciliation is improbable.
(b) A marriage is irretrievably broken where it is characterized by:
(1) Voluntary separation; or
(2) Separation caused by respondent's misconduct; or
(3) Separation caused by respondent's mental illness; or
(4) Separation caused by incompatibility.
(c) Previously existing defenses to divorce of condonation, connivance,
recrimination, insanity and lapse of time are preserved but only with
respect to marriages characterized under subsection (b)(2) of this section.
(d) The only defense to a divorce action shall be the failure to establish
either:
(1) The marriage of the parties; or
(2) Jurisdictional requirements of § 1504 of this title; or
(3) That the marriage is irretrievably broken; or
(4) A defense permitted under subsection (c) of this section because of the
characterization of the marriage under subsection (b)(2) of this section.
(e) Bona fide efforts to achieve reconciliation prior to divorce, even those
that include, temporarily, sleeping in the same bedroom and resumption of
sexual relations, shall not interrupt any period of living separate and
apart, provided that the parties have not occupied the same bedroom or had
sexual relations with each other within the 30-day period immediately
preceding the day the Court hears the petition for divorce.
(24 Del. Laws, c. 221, § 3; 25 Del. Laws, c. 213, § 2; Code 1915, § 3006; 35
Del. Laws, c. 188, § 1; Code 1935, § 3499; 41 Del. Laws, c. 186, § 1; 43
Del. Laws, c. 206, § 1; 13 Del. C. 1953, § 1522; 49 Del. Laws, c. 57, § 1;
51 Del. Laws, c. 27; 56 Del. Laws, c. 296, §§ 1-3; 59 Del. Laws, c. 350, §
1; 60 Del. Laws, c. 333, §§ 3, 4; 61 Del. Laws, c. 365, §§ 3-5.)
...For further information, please refer to the Delaware Code - Title 13
Divorce/Annulment
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Child Support
§ 501. Duty to support minor child; duty to support
child over 18 years of age.
(a) The duty to support a child under the age of 18 years, whether born in
or out of wedlock, rests primarily upon the child's parents.
(b) Where the parents are unable to provide a minor child's minimum needs, a
stepparent or a person who cohabits in the relationship of husband and wife
with the parent of a minor child shall be under a duty to provide those
needs. Such duty shall exist only while the child makes residence with such
stepparent or person and the marriage or cohabitation continues.
(c) The duty to support a child under 18 years of age, whether born in or
out of wedlock, shall rest equally upon both parents.
(d) Both parents have a duty to support their child over 18 years of age if
such child is a student in high school and is likely to graduate. This duty
ends when the child receives a high school diploma or attains age 19,
whichever event first occurs.
(Code 1852, §§ 850-853, 1468, 1472; 26 Del. Laws, c. 137; 27 Del. Laws, c.
262, § 13; Code 1915, §§ 1463, 3033, 3061; 37 Del. Laws, c. 189, § 8; Code
1935, §§ 1634, 3526, 3548; 13 Del. C. 1953, § 501; 50 Del. Laws, c. 207, §
1; 59 Del. Laws, c. 567, § 1; 60 Del. Laws, c. 334, § 1; 70 Del. Laws, c.
186, § 1.)
§ 514. Determination of amount of support.
In determining the amount of support due to one to whom the duty of support
has been found to be owing, the Court, among other things, shall consider:
(1) The health, relative economic condition, financial circumstance, income,
including the wages, and earning capacity of the parties, including the
children;
(2) The manner of living to which the parties have been accustomed when they
were living under the same roof;
(3) The general equities inherent in the situation.
(59 Del. Laws, c. 567, § 1.)
§ 701. Rights and responsibilities of parents;
guardian appointment.
(a) The father and mother are the joint natural guardians of their minor
child and are equally charged with the child's support, care, nurture,
welfare and education. Each has equal powers and duties with respect to such
child, and neither has any right, or presumption of right or fitness,
superior to the right of the other concerning such child's custody or any
other matter affecting the child. If either parent should die, or abandon
his or her family, or is incapable, for any reason, to act as guardian of
such child, then, the custody of such child devolves upon the other parent.
Where the parents live apart, the Court may award the custody of their minor
child to either of them and neither shall benefit from any presumption of
being better suited for such award.
(b) This section shall not affect the laws of this State relative to the
appointment of a guardian of the property of a minor, or the appointment of
a third person as a guardian of the person of the minor where the parents
are unsuitable or where the child's interests would be adversely affected by
remaining under the natural guardianship of his or her parents or parent.
(c) Any child who is the subject of a custody, visitation, guardianship,
termination of parental rights, adoption or other related proceeding in
which the Division of Family Services is a party should have a guardian ad
litem appointed by the Court to represent the best interests of the child.
The Court, in its discretion, may also appoint an attorney to represent the
child's wishes. The guardian ad litem shall be an attorney authorized to
practice law in the State or a Court-Appointed Special Advocate. The rights,
responsibilities and duties of the attorney serving as guardian ad litem are
set forth in section 9007A of Title 29, and the rights, responsibilities and
duties of the Court-Appointed Special Advocate serving as guardian ad litem
are set forth in Chapter 36 of Title 31. When determining whether to appoint
an attorney through the Office of the Child Advocate or a Court-Appointed
Special Advocate through the Family Court, the Family Court judge, in his or
her discretion, should assign the most complex and serious cases to the
Office of the Child Advocate.
(35 Del. Laws, c. 191, § 1; Code 1935, § 3576; 13 Del. C. 1953, § 701; 59
Del. Laws, c. 569, § 2; 72 Del. Laws, c. 451, §§ 2, 3.)
...For further information, please refer to the Delaware Code - Title 13
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Child Custody and Visitation Law
§ 701. Rights and responsibilities of parents;
guardian appointment.
(a) The father and mother are the joint natural guardians of their minor
child and are equally charged with the child's support, care, nurture,
welfare and education. Each has equal powers and duties with respect to such
child, and neither has any right, or presumption of right or fitness,
superior to the right of the other concerning such child's custody or any
other matter affecting the child. If either parent should die, or abandon
his or her family, or is incapable, for any reason, to act as guardian of
such child, then, the custody of such child devolves upon the other parent.
Where the parents live apart, the Court may award the custody of their minor
child to either of them and neither shall benefit from any presumption of
being better suited for such award.
(b) This section shall not affect the laws of this State relative to the
appointment of a guardian of the property of a minor, or the appointment of
a third person as a guardian of the person of the minor where the parents
are unsuitable or where the child's interests would be adversely affected by
remaining under the natural guardianship of his or her parents or parent.
(c) Any child who is the subject of a custody, visitation, guardianship,
termination of parental rights, adoption or other related proceeding in
which the Division of Family Services is a party should have a guardian ad
litem appointed by the Court to represent the best interests of the child.
The Court, in its discretion, may also appoint an attorney to represent the
child's wishes. The guardian ad litem shall be an attorney authorized to
practice law in the State or a Court-Appointed Special Advocate. The rights,
responsibilities and duties of the attorney serving as guardian ad litem are
set forth in section 9007A of Title 29, and the rights, responsibilities and
duties of the Court-Appointed Special Advocate serving as guardian ad litem
are set forth in Chapter 36 of Title 31. When determining whether to appoint
an attorney through the Office of the Child Advocate or a Court-Appointed
Special Advocate through the Family Court, the Family Court judge, in his or
her discretion, should assign the most complex and serious cases to the
Office of the Child Advocate.
(35 Del. Laws, c. 191, § 1; Code 1935, § 3576; 13 Del. C. 1953, § 701; 59
Del. Laws, c. 569, § 2; 72 Del. Laws, c. 451, §§ 2, 3.)
§ 722. Best interests of child.
(a) The Court shall determine the legal custody and residential arrangements
for a child in accordance with the best interests of the child. In
determining the best interests of the child, the Court shall consider all
relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and
residential arrangements;
(2) The wishes of the child as to his or her custodian(s) and residential
arrangements;
(3) The interaction and interrelationship of the child with his or her
parents, grandparents, siblings, persons cohabiting in the relationship of
husband and wife with a parent of the child, any other residents of the
household or persons who may significantly affect the child's best
interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and
responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this
title; and
(8) The criminal history of any party or any other resident of the household
including whether the criminal history contains pleas of guilty or no
contest or a conviction of a criminal offense.
(b) The Court shall not presume that a parent, because of his or her sex, is
better qualified than the other parent to act as a joint or sole legal
custodian for a child or as the child's primary residential parent, nor
shall it consider conduct of a proposed sole or joint custodian or primary
residential parent that does not affect his or her relationship with the
child.
(59 Del. Laws, c. 569, § 4; 67 Del. Laws, c. 236, §§ 2, 3; 69 Del. Laws, c.
309, § 3; 74 Del. Laws, c. 311, § 1.)
§ 727. Custody.
(a) Whether the parents have joint legal custody or 1 parent has sole legal
custody of a child, each parent has the right to receive, on request, from
the other parent, whenever practicable in advance, all material information
concerning the child's progress in school, medical treatment, significant
developments in the child's life, and school activities and conferences,
special religious events and other activities in which parents may wish to
participate and each parent and child has a right to reasonable access to
the other by telephone or mail. The Court shall not restrict the rights of a
child or a parent under this subsection unless it finds, after a hearing,
that the exercise of such rights would endanger a child's physical health or
significantly impair his or her emotional development.
(b) Any custody order entered by the Court may include the following
provisions:
(1) Granting temporary joint or sole custody for a period of time not to
exceed 6 months in duration to give the parents the opportunity of
demonstrating to the satisfaction of the Court their ability and willingness
to cooperate with the custodial arrangement ordered. Following a timely
review of this temporary order by the Court either at the end of this
temporary period or sooner upon the application of any party to the
proceeding, the Court shall have the authority to continue or modify the
temporary order on a permanent basis.
(2) Counseling of the parents, and their child if appropriate, by a public
or private agency approved by the Court to help the parents develop the
necessary skills to deal effectively with the major as well as daily
decisions involving their child under the custodial arrangement ordered, to
continue until such time as the Court is advised in writing by the agency
that such counseling is no longer required. Counseling expenses may be
assessed by the Court as a cost of the proceeding.
(c) Any custody order entered by the Court shall include a contact schedule
by the child with both parents which shall control absent parental
modification by written agreement.
(67 Del. Laws, c. 236, § 5.)
...For further information, please refer to the Delaware Code - Title 13
Child Custody
in Delaware
Grandparent Visitation
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Property Division
§ 1513. Disposition of marital property; imposition
of lien; insurance policies.
(a) In a proceeding for divorce or annulment, the Court shall, upon request
of either party, equitably divide, distribute and assign the marital
property between the parties without regard to marital misconduct, in such
proportions as the Court deems just after considering all relevant factors
including:
(1) The length of the marriage;
(2) Any prior marriage of the party;
(3) The age, health, station, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties;
(4) Whether the property award is in lieu of or in addition to alimony;
(5) The opportunity of each for future acquisitions of capital assets and
income;
(6) The contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property,
including the contribution of a party as homemaker, husband, or wife;
(7) The value of the property set apart to each party;
(8) The economic circumstances of each party at the time the division of
property is to become effective, including the desirability of awarding the
family home or the right to live therein for reasonable periods to the party
with whom any children of the marriage will live;
(9) Whether the property was acquired by gift, except those gifts excluded
by subsection (b)(1) of this section;
(10) The debts of the parties; and
(11) Tax consequences.
(b) For purposes of this chapter only, "marital property" means all property
acquired by either party subsequent to the marriage except:
(1) Property acquired by an individual spouse by bequest, devise or descent
or by gift, except gifts between spouses, provided the gifted property is
titled and maintained in the sole name of the donee spouse, or a gift tax
return is filed reporting the transfer of the gifted property in the sole
name of the donee spouse or a notarized document, executed before or
contemporaneously with the transfer, is offered demonstrating the nature of
the transfer.
(2) Property acquired in exchange for property acquired prior to the
marriage;
(3) Property excluded by valid agreement of the parties; and
(4) The increase in value of property acquired prior to the marriage.
(c) All property acquired by either party subsequent to the marriage is
presumed to be marital property regardless of whether title is held
individually or by the parties in some form of co-ownership such as joint
tenancy, tenancy in common or tenancy by the entirety. The presumption of
marital property is overcome by a showing that the property was acquired by
a method listed in paragraphs (1) through (4) of subsection (b) of this
section. Property transferred by gift from 1 spouse to the other during the
marriage is marital property.
(d) The Court may also impose a lien or charge upon the marital property
assigned to a party as security for the payment of alimony or other
allowance or award for the other party.
(e) The Court may also direct the continued maintenance and beneficiary
designations of existing policies insuring the life of either party. The
Court's power under this subsection shall extend only to policies originally
purchased during the marriage and owned by or within the effective control
of either party.
(f) The Court may order a party to execute and deliver any deed, document or
other paper necessary to effectuate an order entered under this chapter, and
if the party so ordered fails to do what he or she has been ordered to do,
the Court, in addition to any penalty or sanction it may decide to impose
upon that party for such disobedience, may direct the Clerk of the Court to
do what the party was ordered to do, and such performance by the Clerk shall
be as effective as the performance of the party would have been.
(24 Del. Laws, c. 221, §§ 15, 16; 25 Del. Laws, c. 213, § 4; Code 1915, §§
3018, 3019; Code 1935, §§ 3511, 3512; 13 Del. C. 1953, § 1531; 57 Del. Laws,
c. 540, § 1; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, §§ 12, 13; 66
Del. Laws, c. 246, §§ 1-4; 69 Del. Laws, c. 55, §§ 1-3; 70 Del. Laws, c.
186, § 1.)
...For further information, please refer to the Delaware Code - Title 13
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