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.
Find out where you stand in Delaware
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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
- 1
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.
- 3
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.
- 4
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.
- 5
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.
- 6
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.
- 7
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
No Legal-Separation Status
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).
Separation Is a Divorce Prerequisite
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.
Private Separation Agreement Is the Main Option
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.
Interim Relief in a Pending 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.
Divorce After Six Months Apart
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.
Living Apart Does Not Change Status
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.
Reasons to Live Apart Instead of Divorcing
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.
Property Division Belongs in the Settlement Agreement
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.