Delaware Legal Separation Agreement
Delaware does not recognize legal separation as a court status. Couples use a private separation agreement, interim relief in a pending divorce, or divorce. Attorney review available.
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Introduction
Delaware does not recognize legal separation as a court status. There is no Delaware court decree that makes a couple legally separated, and Title 13, Chapter 15 of the Delaware Code, the Delaware Divorce and Annulment Act, provides only for divorce and annulment, with no separation decree of any kind (13 Del. C. 1501, 1505, 1506). Where Delaware law uses the word separation, it means only living separate and apart for six or more months before the ruling on a divorce petition (13 Del. C. 1503), so in Delaware separation is a prerequisite to a divorce, not a status a court can grant on its own. That makes this a state where you cannot file for legal separation, but you still have real options. First, a private separation agreement, a written contract between the spouses, lets you settle support, who lives where, how expenses and debts are handled, and how you will treat property while you live apart; separation agreements are enforceable contracts in Delaware and can be incorporated into a later divorce. Second, if a divorce petition is on file, the Family Court can grant interim relief while the case is pending (13 Del. C. 1509), and the Family Court can also address spousal and child support. Third, once the six-month separation period is met, a spouse may seek a divorce on the ground of irretrievable breakdown. Couples live apart under a written agreement rather than divorcing to keep a spouse on health insurance, to reach the ten-year mark for certain military and Social Security spousal benefits, for religious reasons, or as a trial step. The division of property is Delaware's marital-property work, which belongs in a Delaware Marital Settlement Agreement; if you decide to end the marriage, the pleading that starts it is a Delaware Divorce Petition. DocDraft builds your Delaware separation agreement from your facts, with attorney review available before you sign.
Key Things to Know
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Delaware does not recognize legal separation as a court status. No Delaware court decree makes a couple legally separated; Title 13, Chapter 15 (the Delaware Divorce and Annulment Act) provides only for divorce and annulment (13 Del. C. 1501, 1505, 1506).
- 2
In Delaware, separation means only living separate and apart for six or more months before the ruling on a divorce petition (13 Del. C. 1503). It is a prerequisite to a divorce, not a status a court can grant on its own.
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Because there is no legal-separation status, your first real option in Delaware is a private separation agreement, a written contract that settles support, living arrangements, and how property and debts are handled. Separation agreements are enforceable and can be incorporated into a later divorce.
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If a divorce petition is already on file, the Delaware Family Court can grant interim relief while the case is pending (13 Del. C. 1509) and can address spousal and child support.
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Once the six-month separation period is met, a spouse may seek a divorce on the ground of irretrievable breakdown of the marriage (13 Del. C. 1505). This is the path Delaware uses instead of a legal-separation decree.
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A Delaware couple who lives apart is not legally separated in any status sense; the marriage stays intact and neither spouse may remarry until a divorce is granted. Rights are fixed only by a written agreement or a court order.
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Because Delaware divides marital property when a marriage ends, those terms belong in a marital settlement agreement rather than the separation agreement itself; see the Delaware marital settlement agreement page.
Key decisions before you file
Before you file a Legal Separation Agreement in Delaware, a few decisions shape the document: which option to choose and what each one means. The Legal Separation Agreement guide walks through them.
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Delaware Requirements for Legal Separation Agreement
Delaware does not recognize legal separation as a court status. No Delaware decree makes a couple legally separated; Title 13, Chapter 15 (the Delaware Divorce and Annulment Act) provides only for divorce and annulment (13 Del. C. 1501, 1505, 1506).
In Delaware, separation means only living separate and apart for six or more months before the ruling on a divorce petition (13 Del. C. 1503). It is a prerequisite to a divorce, not a status a court can grant on its own.
Because Delaware has no legal-separation status, the primary option is a private separation agreement, a written contract that settles support, living arrangements, and how property and debts are handled. Separation agreements are enforceable and can be incorporated into a later divorce.
If a divorce petition is already on file, the Delaware Family Court can grant interim relief while the case is pending (13 Del. C. 1509) and can address spousal and child support. This is one real option short of a final divorce.
Once the six-month separation period is met, a spouse may seek a divorce on the ground of irretrievable breakdown of the marriage (13 Del. C. 1505). This is the path Delaware uses instead of a legal-separation decree.
A Delaware couple who lives apart is not legally separated in any status sense; the marriage stays intact and neither may remarry until a divorce is granted. Rights are fixed only by a written agreement or a court order, not by living apart alone.
Couples in Delaware live apart under a written agreement to keep a spouse's health insurance, to reach the ten-year mark for certain military and Social Security benefits, or for religious or trial-step reasons. Confirm insurance effects with the plan, since many treat a separation like a divorce.
Delaware divides marital property when a marriage is dissolved. Because that is the same work done in a divorce, set out the division in a Delaware marital settlement agreement and keep the separation agreement focused on support and living arrangements.
Frequently Asked Questions
Delaware does not recognize legal separation as a court status, so there is no Delaware order that makes a married couple legally separated. Where Delaware law uses the word separation, it means only living separate and apart for six or more months before a divorce is ruled on (13 Del. C. 1503). In practice, a Delaware separation is a private arrangement: the spouses live apart and set their terms in a written separation agreement. The marriage stays intact and ends only if the couple later obtains a divorce.
No. Delaware does not offer legal separation as a legal status, and a Delaware court cannot enter a decree of legal separation. Title 13, Chapter 15 of the Delaware Code provides only for divorce and annulment (13 Del. C. 1501, 1505, 1506); it contains no separation decree. Some states grant a legal-separation judgment, but Delaware is not one of them. A couple who wants an enforceable arrangement uses a written separation agreement or the Family Court's support and interim-relief powers instead of a status change.
You have three real options in Delaware. First, a private separation agreement, a written contract that settles support, living arrangements, and how property and debts are handled while you live apart; it is enforceable and can be incorporated into a later divorce. Second, if a divorce petition is on file, the Family Court can grant interim relief while the case is pending (13 Del. C. 1509) and can order support. Third, once the six-month separation period is met, you can seek a divorce (13 Del. C. 1505).
In Delaware, separation is defined as living separate and apart for six or more months immediately before the ruling on a petition for divorce (13 Del. C. 1503). The statute adds that spouses can be separated even while living under the same roof, provided they occupy separate bedrooms and do not have sexual relations. This separation is a requirement for a no-fault divorce; it is not a standalone legal status, and completing it does not by itself change the couple's marital status.
Yes. A Delaware separation agreement is a written contract between spouses, and separation agreements are enforceable as contracts in Delaware. In the agreement the spouses can set support, decide who lives where, allocate expenses, and address how they will treat property and debts while living apart. The agreement can also be incorporated into a later divorce. Because Delaware has no legal-separation status, a written agreement is the main way spouses make their separation terms binding.
Yes, in more than one way. Spouses can agree on support in a written separation agreement, which is enforceable as a contract. The Delaware Family Court also has authority over spousal and child support. And if a divorce petition is on file, the Family Court can grant interim relief while the case is pending (13 Del. C. 1509). What Delaware does not offer is a legal-separation decree that sets support as a separate status, so support comes through an agreement or the court's support and interim powers.
While a couple lives apart, they can address property and debts in a written separation agreement, and Delaware divides marital property when a marriage is dissolved. Because dividing the marital estate is the same work done in a divorce, those terms are set out in a Delaware marital settlement agreement rather than in the separation agreement, which focuses on support and living arrangements. Living apart alone does not divide property; that happens by agreement or in a divorce.
People in Delaware live apart under a written agreement rather than divorcing for practical or personal reasons. Staying married can keep one spouse on the other's health insurance, though many plans treat a separation the same as a divorce, so confirm with the insurer. Reaching ten years of marriage can matter for certain military and Social Security spousal benefits. Some couples live apart for religious reasons, and others treat it as a trial step, keeping the option to reconcile or to divorce later.