Breaking Down the Delaware Divorce Process Into 4 Easy Steps
The divorce process is governed by state law. So, the process can and often does differ from one state to another. A recent post described the Pennsylvania divorce process in 4 easy steps. A divorce filed in Delaware can also be described in 4 steps.
While every case is different, all Delaware divorces can be broken down into four main steps: (1) Initiation, (2) Divorce, (3) Discovery, and (4) Economics.
Here is what to expect as you make your way through the process.
In order to begin the divorce process in the Delaware Family Court, one party will need to file a petition for divorce and other related forms. The petition will specify what type of relief the petitioner wants. The petitioner may simply want the Court to issue a divorce decree. Or, the petitioner may also want the Court to divide the marital estate and/or award alimony.
Once a petition for divorce is filed by one spouse, it needs to be served on the other spouse. The other spouse, referred to as the respondent, then has an opportunity to file an answer to the petition.
Delaware law requires, among other things, that parties must be separated for six months before the Court can issue a divorce decree. Once the separation period is over, and if all the other jurisdictional elements are met, the Family Court will issue a Final Decree of divorce. As a result, parties to a divorce in Delaware can go through stages 3 and 4 as single people, or they may be remarried.
The purpose of the “Discovery” stage, which can actually begin before divorce decree issues, is to figure out the size and nature of the couples’ marital estate. We identify what is part of the marital estate and what is not. We gather information on the value of the assets and debts that are part of the marital estate, and those that are not. And, we gather information about each party’s income and living expenses.
How do we acquire this information? One source of information is the Ancillary Financial Disclosure Report. Each party is required by the Court to complete this Report. The Report is exchanged by the parties and then filed with the Court within sixty days of the date of the divorce decree. Using the Report and other information, your attorney can determine what other information or evidence they need. Then each party can send discovery to the opposing party. Discovery requests frequently include a request for various documents related to the marital estate – such as bank account statements, retirement account records and credit card statements. Additional forms of discovery may include depositions or written questions, called interrogatories.
Taking everything learned in the Discovery stage – i.e. what is part of the marital estate and what is not – the next step is figuring out how to split it up. A common misconception is that everything will be divided equally. However, Delaware law provides for the equitable division of the marital estate. It is important to note that an “equitable” division may not be an equal division. This means that one spouse may end up with a larger percentage of the marital estate. To determine what is an equitable result, the Court uses eleven (11) factors, which include the age of the parties, each party’s contribution to or dissipation of the marital estate, each party’s income, the length of the marriage, and the tax implications of the division.
The Family Court Rules require that the parties and their lawyers engage in a settlement conference. If the parties are unable to settle the case, the Court will have a hearing and issue a decision.
For further guidance on the divorce process or for assistance with your specific case, please set up a consultation with a member of our Family Law team.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.