By Neta, founder of SortMyDivorce · Published · Updated
6 months in Delaware before filing, and 6 months of separation before it can be finalized unless you plead misconduct. Delaware does not recognize legal separation.
Delaware divorces run through a single specialized court and a property system that rewards early organization — knowing how the state's rules work before you file changes how the whole process feels.
| Residency requirement | One spouse must have lived in Delaware for at least 6 months immediately before filing (military members stationed in Delaware for 6+ months also qualify). |
|---|---|
| Grounds | No-fault only: irretrievable breakdown, shown either by 6 months' separation, or by misconduct (adultery, desertion, or physical/mental abuse, which must be proven and has no separation requirement). In practice incompatibility is the most-used route to showing the breakdown (13 Del. C. §1505(b)), alongside separation, misconduct and mental illness. |
| Waiting period | 6 months of separation before the divorce can be finalized, unless the petition is based on proven misconduct grounds. |
| Legal separation | Delaware does not recognize legal separation. There is no status to file for. Couples live apart and use a written separation agreement to settle support, property and parenting in the meantime. |
| If you were never married | Delaware does not create common-law marriage, and living together gives neither partner property or support rights. Claims rest on agreements between you. A common-law marriage validly formed in a state that does create them is generally still recognised. |
| Where you file | Family Court of the State of Delaware, in the county (New Castle, Kent, or Sussex) where either spouse resides. |
| Filing fee | Payable when you file your opening divorce document. Set by regulation and revised from time to time. Filing fees are set by the court and change without notice: check the current schedule on the court's own website before you file, and ask about a fee waiver if the cost is a barrier. |
| Starting forms | Petition for Divorce/Annulment (Form 442), Information Sheet (Form 240), Vital Statistics Sheet (Form 441) or Vital Statistics Same Sex Marriage (Form 441SS), Request for Notice (Form 400), plus your original or certified marriage/civil union certificate. |
| Simplified option | Yes — uncontested divorces let the petitioner ask the court to decide 'on the papers' without a hearing, once the required waiting period and paperwork are complete. |
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Delaware handles all divorce, custody, and support matters in one place: the Family Court of the State of Delaware, governed by Title 13 of the Delaware Code. There's no separate 'divorce court' and no jury — a Family Court judge or commissioner hears the case, and the court sits in each of Delaware's three counties (New Castle, Kent, and Sussex), so where you file generally follows where you or your spouse live.
Delaware is a no-fault state built around the concept of a marriage being 'irretrievably broken.' If you and your spouse have lived separate and apart for six months or more before filing, the law generally treats that as strong evidence the marriage can't be saved, which tends to streamline the case. Divorcing sooner than six months apart is possible, but courts generally look more closely at whether reconciliation is realistic, and may want to see that counseling or a similar step has at least been considered. Delaware also has a residency requirement — generally one spouse must have lived in the state for a period before filing — so confirm current specifics with the Family Court or a local lawyer before you file.
On property, Delaware is an equitable distribution state, not a community property state. That means the court divides marital property in a way it considers fair, which is not automatically a 50/50 split. Courts generally weigh factors like the length of the marriage, each spouse's economic circumstances, and contributions to the marriage — including non-financial ones like raising children or supporting a spouse's career.
Because equitable distribution depends on the court understanding your full financial picture, disclosure tends to be thorough in Delaware. Start pulling together: recent tax returns, pay stubs, and W-2s or 1099s; statements for every bank, retirement, and investment account; mortgage and property tax records for any real estate; and business records if either spouse owns a company. If any property came into the marriage before the wedding, or arrived later as a gift or inheritance, gather the paperwork that shows its origin and value — separate property can stay separate in Delaware, but only if you can show where it came from and that it wasn't mixed into joint accounts or joint use over the years.
Keep a folder — physical or digital — of every letter that arrives once things are contested: from your spouse's lawyer, from your own lawyer, or from the court. Delaware correspondence, like most family law mail, tends to set deadlines and stake out positions, and it's easy for that thread to get tangled when it's spread across email, mail, and texts.
Child support in Delaware is calculated using the Melson Formula, a state-specific approach that first accounts for each parent's basic living needs before allocating support for the children — different from the flat percentage-of-income models some neighboring states use. The formula considers both parents' incomes, the number of children, and the parenting time schedule, so accurate income documentation from both sides matters.
Custody decisions (Delaware calls this 'legal custody' and 'residential arrangements') are made based on the best interests of the child, with courts generally favoring arrangements that keep both parents meaningfully involved unless there's a specific reason not to. A clear, specific parenting proposal — schedules, holidays, decision-making authority — tends to hold up better than a vague one.
Delaware is one of the states where legal separation simply does not exist. There is no petition to file and no decree to obtain, so couples who want to live apart without divorcing do so informally.
The tool that does the work is a separation agreement: a private written contract setting out who pays what, who lives where and how parenting works while you are apart. It is not a court order, but it is binding between you, and it is what a court will generally look to later.
Living apart is not the same as being divided. Until a divorce is finalised you are still married, with whatever that means for property and debt in this state — worth confirming with a local family lawyer before assuming that moving out has drawn a line.
Delaware does not create common-law marriage. There is no number of years of living together that turns into a marriage here, and none of the divorce machinery on this page applies to a couple who never married — no property division, no spousal support, no residency requirement to satisfy, because there is nothing to dissolve.
What unmarried partners have instead are ordinary civil claims: whatever you agreed between yourselves, in writing or by clear conduct, and claims over property you actually hold jointly. These are argued like any other contract or property dispute rather than as family-law entitlements, and they turn on what can be proved.
One qualification runs the other way and matters. A common-law marriage validly formed in a state that does create them — Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas or Utah — is generally recognised elsewhere. A couple who met that state's test while living there, and later moved here, are married, and separating means divorcing. Children are unaffected either way: custody and child support are decided on the same basis whether or not the parents married.
1) Confirm where you and your spouse stand on the six-month separation clock, since it shapes both timing and strategy. 2) Build your financial disclosure folder early, before positions harden and requests start feeling adversarial. 3) List marital versus separate property honestly, and start gathering the tracing documents for anything you consider separate. 4) Get at least one consultation with a Delaware family lawyer, even if you plan to handle much of the process yourself — the six-month and residency rules have enough nuance that a quick local check is worth it. 5) From the first letter onward, keep every piece of correspondence and its deadline in one place; Family Court matters move on paper as much as in person, and a missed date is hard to undo.
You or your spouse must have lived in Delaware for at least 6 months before filing. Delaware only recognizes no-fault divorce: either 6 months of separation, or proven misconduct (adultery, desertion, or abuse) with no separation wait.
You'll need to file your original or a certified copy of your marriage or civil union certificate along with your petition, so request one early from vital records if you don't have it.
This is the core document that opens your case with Family Court. Delaware's Family Court also encourages self-represented filers to review the Divorce Instruction Packet before completing it.
Along with the petition, file the Information Sheet (Form 240), a Vital Statistics Sheet (Form 441, or Form 441SS for same-sex marriages), and a Request for Notice (Form 400).
Submit your petition and forms to Family Court in New Castle, Kent, or Sussex County — whichever county you or your spouse resides in — along with the filing fee.
Budget for the divorce filing fee plus a separate court security fee, both set out in the court's official cost schedule. Confirm the current amounts with the clerk before you file, since they change.
Your spouse must be formally notified of the petition through the court's service process so they have the chance to respond or file an Answer.
Unless your case is based on proven misconduct, the court cannot finalize the divorce until 6 months of separation have passed.
If both spouses agree on the terms, you can ask the court to decide the divorce based solely on the filed papers rather than scheduling a hearing, which can speed up finalization.
No. Delaware is an equitable distribution state, so the Family Court divides marital property in a way it finds fair based on factors like the marriage's length and each spouse's circumstances — not an automatic even split.
Six months of separation generally creates a strong presumption that the marriage is irretrievably broken, which tends to simplify the case. Filing sooner is possible, but courts generally look more closely at whether reconciliation is realistic — confirm specifics with a local lawyer.
Delaware uses its own approach, the Melson Formula, which first accounts for each parent's basic needs before allocating support, factoring in both incomes and the parenting schedule.
No. Delaware law does not provide for legal separation, so there is no court status to apply for. Spouses who want to live apart without divorcing generally sign a separation agreement, which is a contract between them rather than a court order. It can cover support, the family home and parenting. Until a divorce is finalised you remain married, so confirm what that means for property in your situation before relying on living apart.
No. Delaware does not create common-law marriage, and living together for any length of time gives neither partner property division nor spousal support. Unmarried partners rely instead on agreements between themselves and on claims over jointly held property, argued as ordinary civil matters. One important exception: a common-law marriage validly formed in a state that does create them — such as Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas or Utah — is generally recognised here, so that couple would need a divorce. Custody and child support apply regardless of marriage.
If you are in immediate danger, call 911. For support with domestic violence, contact a 24/7 line: 302-762-6110 in New Castle County, 302-422-8058 in Kent and Sussex. Nationally you can also reach the National Domestic Violence Hotline at 1-800-799-7233, or text START to 88788 if a call is not safe. For a mental health crisis, call or text 988.
Last reviewed August 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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