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Delaware Family Law: An Overview

Family issues are both emotionally and legally complex to work out on your own. While the emotional turmoil is something that must be addressed personally, you don’t need to address the legal part of your family issue alone or without the benefit of legal expertise.

If you have a family law case in Wilmington, Newark, Dover or elsewhere in Delaware, LawInfo is your source for information and legal help. LawInfo’s Delaware Family Law section includes legal overviews, summaries of state laws and other resources to help you make the right decisions for you and your family.

If you need help navigating the complex laws governing your case, a Delaware family law attorney can help and treat your case with the sensitivity it deserves.

Delaware Prenuptial Agreements

A prenuptial (or premarital) agreement shouldn’t be seen as a harbinger of a marriage doomed for divorce. Rather, it should be seen as a form of insurance—a policy written by and for both parties to a marriage that ensures a more equitable and civil divorce if one ever occurs.

The primary goal of a prenuptial agreement is to decide who gets what if there’s a divorce. Each party’s rights and responsibilities to real, personal and financial property and to debts, leases or credit lines are established in the agreement as well. You can also include sections about wills, trusts, spousal support (alimony) and death benefit rights for life insurance.

Delaware’s laws prevent prenuptial agreements from negatively impacting child support rights. Prenuptial agreements often leave child support decisions up to the court to avoid conflicts.

Delaware Marriage Requirements

Marriage is as much of a personal affair between two people as it is a legal affair in Delaware. The state has an interest in protecting the rights and welfare of its people and the community. To do so effectively, Delaware enforces restrictions and requirements for attaining a legal marriage.

A Delaware marriage license is a mandatory document you and your fiancé must attain prior to getting married. It verifies that the union doesn’t violate the state’s prohibited marriages statutes, which include marriages:

  • Between family members, including siblings, half-siblings, first cousins, ancestors and descendants, uncles/nieces and aunts/nephews.
  • In which either party is still married to another person. Both parties must present a divorce certificate if the previous marriage was ended.
  • In which either party is on probation or parole. To legally marry, the party on probation or parole would need written consent from the chief officer of the court or institution that has jurisdiction over their case.
  • That involve a party under 18 years of age. Minors who which to get married must obtain the court’s written consent and their parent or legal guardian must petition for the marriage to the court on their behalf.

Marriages between same-sex couples are legal in Delaware.

Delaware Divorce Requirements

Just as there are marriage requirements in Delaware, there are also divorce requirements. Delaware is considered a “no-fault” divorce state, meaning a couple can be granted a divorce on the ground of an irretrievable breakdown of the marriage.

While this ground for divorce traditionally assigns no blame to either party for the divorce, Delaware’s law includes an option that the breakdown may be the result of:

  • Separation due to incompatibility,
  • Voluntary separation,
  • The respondent’s (the party not filing the divorce petition) marital misconduct (such as adultery), OR
  • The respondent’s mental illness.

Despite the fact that you could request a divorce based on any of these four fault grounds, the fault grounds may not be used by the court in alimony decisions. However, they can be used in child custody and property distribution decisions.

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