How to File for Divorce in Delaware: Residency, Grounds & Waiting Period

The Short Answer for Delaware Residents

To file for divorce in Delaware, at least one spouse must have lived in the state continuously for six or more months before filing. Delaware uses a no-fault system, so neither party needs to prove wrongdoing in most cases. The court will not issue a final divorce order until the couple has been separated for at least six months — but you can file your petition while that clock is still running.

Residency: Who Must Live in Delaware, and for How Long

Before a Delaware Family Court can hear your case, either you or your spouse must have been a continuous Delaware resident for six or more months immediately before you file, under 13 Del. C. § 1504(a). The word "continuous" matters — the residency must be genuine and uninterrupted in character, not just a mailing address.

Active-duty military members who have been stationed in Delaware for that same period also satisfy the requirement. If neither spouse currently meets this threshold, you will need to wait until one of you has accumulated the required time in state before filing.

Grounds for Divorce: Delaware's No-Fault System

Under 13 Del. C. § 1505, Delaware grants a divorce when the court finds the marriage is irretrievably broken and reconciliation is improbable. The law recognizes four ways that breakdown can be shown:

• Voluntary separation — both spouses chose to live apart
• Respondent's misconduct — conduct by the other spouse that caused the breakdown
• Respondent's mental illness — the other spouse's mental illness has made reconciliation improbable
• Incompatibility — the spouses cannot get along and the marriage has broken down

In practice, most uncontested divorces proceed on incompatibility or voluntary separation. You do not have to accuse your spouse of anything to end your marriage in Delaware.

The Six-Month Separation Requirement

This is the rule that surprises most people. Even if you meet the residency requirement and have clear grounds, the Family Court will not issue a final divorce order until you and your spouse have been separated for at least six months immediately before the ruling, under 13 Del. C. § 1503(8) and § 1507(e).

Good news on timing: You do not have to wait for the six months to finish before you file your petition. Filing early puts paperwork into the system, allows ancillary proceedings like property and custody to begin, and means you are ready to move quickly once the separation period ends.

Can You Separate While Still Living Under the Same Roof?

Yes. Delaware's definition of "separation" does not require two different addresses. Under 13 Del. C. § 1503(8), spouses are considered separated even if they remain in the same home, provided they maintain separate bedrooms and have no sexual relations. This exception matters for couples who cannot afford to maintain two households during the divorce process.

If you rely on the same-roof separation, document it carefully. Keep records that clearly show you were living separate lives within the home — separate finances, separate routines, separate sleeping arrangements — because a judge may scrutinize whether the separation was genuine.

The Misconduct Exception to the Waiting Period

There is one situation where the six-month separation period is not required: a divorce grounded in the respondent's misconduct under § 1505(b)(2). Whether specific conduct in your situation qualifies is something you should confirm with the Family Court or a Delaware attorney — do not assume this exception applies without verification.

Where to File in Delaware

Delaware has three Family Court locations, and you file in the county where either you or your spouse currently lives:

• New Castle County — Family Court in Wilmington
• Kent County — Family Court in Dover
• Sussex County — Family Court in Georgetown

The form you submit is called a Petition for Divorce/Annulment. Always download forms directly from the Delaware Courts Family Court website to make sure you have the most recent version — court staff can confirm which forms apply to your situation.

Filing Fees and Fee Waivers

A filing fee applies when you submit your Petition for Divorce/Annulment. Additional fees apply if you are also asking the court to rule on ancillary matters such as property division, alimony, or child support. Do not rely on this article for specific dollar amounts — fee schedules change, and you should confirm current fees directly on the Delaware Family Court Fees and Filings page before you go to the courthouse.

If paying the fee would create genuine financial hardship, you may apply to proceed in forma pauperis — a request to have fees waived or reduced based on inability to pay. Ask the clerk's office for the application when you file, or check the court website for instructions before your court date.

Special Considerations for Military Families

Servicemember Protections Under the SCRA

Under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932, an active-duty servicemember whose military duties materially affect their ability to appear in a divorce, custody, or support proceeding may request a stay of at least 90 days. This protection prevents a deployed servicemember from having a divorce or custody judgment entered against them by default while they cannot participate. If you are the civilian spouse trying to move a case forward while your spouse is deployed, the SCRA may extend your timeline — plan accordingly.

Military Retirement Pay

If your spouse is entitled to military retirement pay, federal law under 10 U.S.C. § 1408 — the Uniformed Services Former Spouses' Protection Act (USFSPA) — allows state courts to treat military "disposable retired pay" as marital property divisible in divorce. Delaware's Family Court decides how much, if any, of that pay you receive; federal law does not set a guaranteed 50/50 split.

Direct payment to a former spouse through the Defense Finance and Accounting Service (DFAS) is only available when the couple was married at least 10 years overlapping at least 10 years of creditable military service — the so-called "10/10 rule." If your marriage does not meet that threshold, you may still be awarded a share of the retired pay in the divorce settlement, but you would collect it through your ex-spouse rather than directly from DFAS.

What You Can Do in Delaware: Step-by-Step

1. Confirm residency. Verify that you or your spouse has lived continuously in Delaware for at least six months. If not, note the date that threshold will be reached.
2. Start and document the separation period. Note the exact date you and your spouse began living separate and apart — whether in different homes or in the same home with separate bedrooms and no sexual relations. Keep a written record.
3. Get the current forms. Download the Petition for Divorce/Annulment and any supporting forms from the Delaware Family Court website. Do not use outdated printed copies.
4. File in the correct county courthouse. Submit your petition at the Family Court location serving the county where you or your spouse lives — Wilmington, Dover, or Georgetown.
5. Pay the fee or apply for a waiver. Check current fees before you go. If you qualify, ask the clerk about the in forma pauperis application.
6. Serve your spouse. Your spouse must be formally notified of the divorce action. Ask the clerk what service methods Delaware Family Court accepts, and what to do if your spouse cannot be located.
7. Address ancillary matters early. Property division, alimony, child custody, and child support are handled alongside the divorce but often take longer. Starting those processes early avoids delays once the divorce itself is ready to be finalized.
8. Wait for the ruling. Even after all paperwork is complete, no final divorce order will issue until the six-month separation period has run through the date of the court's ruling — not just the date you filed.

Time-sensitive reminder: The six-month separation period is measured through the date of the ruling, not the filing date. Keep your documentation of separation current through the entire proceeding.

A Note on Children and Custody

Child custody and visitation are governed separately from the divorce itself. Delaware, like 48 other states and the District of Columbia, follows the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which determines which state's courts have authority over custody when parents live in different states. If your divorce involves children, talk to the Family Court clerk or an attorney about whether Delaware has jurisdiction over custody in your specific circumstances.

This article is general legal information, not legal advice. Laws change and every situation is different — consult a licensed Delaware attorney or contact the Delaware Family Court directly for guidance specific to your circumstances.