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Delaware Divorce Petition

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Introduction

In Delaware the divorce petition is titled the Petition for Divorce/Annulment, the formal legal pleading a spouse files with the Family Court to begin a divorce case and ask the court to end the marriage and settle related issues. Before that petition can lead to a divorce, either the petitioner or the respondent must have been a resident of Delaware, or stationed here as a member of the armed services, for the 6 months immediately preceding the filing of the petition (13 Del. C. § 1504(a)). Delaware then requires 6 months of separation before a divorce may be granted, except where the separation is caused by the respondent's misconduct or mental illness (13 Del. C. § 1505(b)(2)); the petition itself may be filed at any time after separation once residency is met (13 Del. C. § 1507(e)). Delaware is a pure no-fault jurisdiction, and its sole ground is that the marriage is irretrievably broken and reconciliation is improbable (13 Del. C. § 1505(a)). The parties must live separate and apart, which can occur under one roof so long as they no longer occupy the same bedroom or have sexual relations (13 Del. C. § 1505(d)), and the case proceeds in the Family Court of the State of Delaware.

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Key Things to Know

  1. 1

    Definition: A Delaware divorce petition, formally captioned the Petition for Divorce/Annulment, is the pleading one spouse files with the Family Court to open a divorce case and ask the court to legally end the marriage.

  2. 2

    Residency: Either the petitioner or the respondent must have been a resident of Delaware, or stationed in the state as a member of the armed services, for the 6 months immediately preceding the filing of the petition (13 Del. C. § 1504(a)).

  3. 3

    Grounds: Delaware is pure no-fault. The sole ground is that the marriage is irretrievably broken and reconciliation is improbable (13 Del. C. § 1505(a)). Voluntary separation, separation caused by the respondent's misconduct or mental illness, and incompatibility are only evidentiary bases, not independent fault grounds.

  4. 4

    Separation: The parties must live separate and apart, which may occur inside the same household so long as they no longer occupy the same bedroom or have sexual relations (13 Del. C. § 1505(d)).

  5. 5

    Waiting period: A divorce may not be granted until the parties have been separated for 6 months, except where the separation is caused by the respondent's misconduct or mental illness (13 Del. C. § 1505(b)(2)); the petition itself may be filed at any time after separation once residency is met (13 Del. C. § 1507(e)).

  6. 6

    Property: The Family Court equitably divides marital property in the proportions it deems just, without regard to marital misconduct (13 Del. C. § 1513). Division is equitable, not necessarily equal.

  7. 7

    Forms, fee, and terminology: File a Petition for Divorce/Annulment with an accompanying Information Sheet in the Family Court of the State of Delaware, where the respondent is served rather than issued a traditional civil summons and the pleadings use the terms Petitioner and Respondent. The filing fee is $165 plus a $10 court security fee, waivable through an Application to Proceed In Forma Pauperis (Form 257P). Delaware grants a 'divorce' and does not use the term 'dissolution of marriage.'

Key decisions before you file

Before you file a Divorce Petition in Delaware, a few decisions shape the document: which option to choose and what each one means. The Divorce Petition guide walks through them.

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Filing a Divorce Petition in Delaware

Delaware calls the first pleading a Petition for Divorce/Annulment, and you file it in the Family Court of the State of Delaware. Before that petition can lead to a divorce, either the petitioner or the respondent must have been a resident of Delaware, or stationed in the state as a member of the armed services, for the 6 months immediately preceding the filing (13 Del. C. § 1504(a)). Once residency is satisfied, you may file at any time after separation begins (13 Del. C. § 1507(e)).

A Pure No-Fault Ground

Delaware recognizes one ground for divorce: the marriage is irretrievably broken and reconciliation is improbable (13 Del. C. § 1505(a)). Voluntary separation, separation caused by the respondent's misconduct, separation caused by mental illness, and incompatibility are not independent fault grounds. They are only the evidentiary bases used to show that breakdown. The court asks whether the marriage is over, not who ended it. That no-fault focus keeps the case centered on the future rather than assigning blame.

Living Separate and Apart

The parties must live separate and apart, but Delaware does not force one spouse out of the house. Separation can occur while both still occupy the same household, so long as they no longer share the same bedroom or have sexual relations (13 Del. C. § 1505(d)). This lets separating couples manage children and shared expenses while the statutory clock runs.

Waiting Period and Timing

A court may not grant the divorce until the parties have been separated for 6 months, except where the separation is caused by the respondent's misconduct or mental illness (13 Del. C. § 1505(b)(2)). Because you can file as soon as residency is met, many petitioners file early and let the separation period mature while the case is pending. Filing early does not shorten the six-month wait, but it starts the case moving.

Dividing Marital Property

Delaware is an equitable distribution state. The Family Court divides marital property in the proportions it deems just, and it does so without regard to marital misconduct (13 Del. C. § 1513). Equitable means fair in light of each spouse's circumstances, contributions, and needs, which is not always an equal split.

Forms, Fees, and Terminology

You file the petition with an accompanying Information Sheet, and the respondent is served rather than issued a traditional civil summons. Delaware uses the terms Petitioner and Respondent, and it calls the action a divorce, not a 'dissolution of marriage.' The filing fee is $165, plus a $10 court security fee. A petitioner who cannot afford these costs may ask for a waiver through an Application to Proceed In Forma Pauperis (Form 257P).

Once you understand Delaware's residency rule, its single no-fault ground, and the separation requirement, you can assemble your paperwork with confidence. Begin your Delaware filing with a properly formatted divorce petition (/legal-document/divorce-petition) built for the Family Court's expectations.

Delaware Requirements for Divorce Petition

Residency (State)

Spouses must meet the residency requirement: Either petitioner or respondent must have been a resident of Delaware, or stationed in Delaware as a member of the armed services, for 6 months immediately preceding the filing of....

Residency (County)

Must file in the correct county Family Court of the.

Grounds for Divorce

Must properly plead grounds: Pure no-fault. The sole ground is that the marriage is 'irretrievably broken' and reconciliation is improbable (13 Del. C. § 1505(a)). Irretrievable breakdown is shown by voluntary separation, separation caused....

Waiting Period

Mandatory waiting period: 6 months of separation before a divorce may be granted, except where the separation is caused by respondent's misconduct or....

Required Forms

Must file correct state forms: Petition for Divorce/Annulment, filed with an accompanying Information Sheet; respondent is served rather than issued....

Property Division

Property is divided according to: Equitable distribution , the court equitably divides marital property without regard to marital misconduct in... laws.

Filing Fee

Filing fee is typically $165 (plus a $10 court security fee); waivable via Application... unless waived.

Service of Process

The Respondent must be properly served with the summons and petition.

Frequently Asked Questions

In Delaware, the divorce petition is the opening pleading, formally titled the Petition for Divorce/Annulment. One spouse files it with the Family Court of the State of Delaware to start the case and ask the court to legally end the marriage. It sets out residency, the no-fault ground, and the relief you are requesting, and it is filed with an accompanying Information Sheet.

In Delaware there is no separate 'dissolution of marriage' proceeding. Delaware uses the word divorce, and the initiating document is the Petition for Divorce/Annulment. Some states label the case a dissolution and call the opening paper a petition for dissolution, but Delaware keeps the term divorce throughout. So the divorce petition here simply is the pleading that other states might call a dissolution petition.

Delaware is a pure no-fault state. The sole ground is that the marriage is 'irretrievably broken' and reconciliation is improbable (13 Del. C. § 1505(a)). You show that breakdown through voluntary separation, separation caused by the respondent's misconduct or mental illness, or incompatibility, but these are evidentiary bases, not separate fault grounds.

Yes, the parties must live separate and apart. Delaware does not require anyone to move out. Separation may occur while both spouses remain in the same household, so long as they no longer occupy the same bedroom or have sexual relations (13 Del. C. § 1505(d)).

A divorce may not be granted until the parties have been separated for 6 months, except where the separation is caused by the respondent's misconduct or mental illness (13 Del. C. § 1505(b)(2)). You can file the petition as soon as residency is met, so many petitioners file early and let the separation period run while the case is pending.

The filing fee is $165, plus a $10 court security fee. If you cannot afford these costs, you can request a waiver by filing an Application to Proceed In Forma Pauperis (Form 257P), which lets low-income filers ask the Family Court to excuse the fees.

Delaware follows equitable distribution. The Family Court divides marital property in the proportions it deems just and does so without regard to marital misconduct (13 Del. C. § 1513). Equitable means fair given each spouse's circumstances, contributions, and needs, which is not always an equal split.

Yes. Because Delaware is no-fault, your spouse cannot block the divorce by refusing to cooperate. As long as you properly serve the respondent, the Family Court can proceed and enter a default judgment if the respondent does not respond or participate.