Child Support
Residency Requirements and Grounds for Divorce
Either you or your spouse may file for a divorce in Delaware if you have six months' residency there. The legal name for a divorce case is a "dissolution of marriage," and you start your case by filing papers in the county where either of you live.
Only one ground or basis for divorce is used: the irretrievable breakdown of your marriage, with reconciliation improbable. This means there's no reasonable hope for the marriage to continue.
While you don't have to show one spouse was at fault in the marriage's breakdown, you still need to show the court you've separated. Separation types are:
- Voluntary separation
- Separation caused by the other spouse's misconduct
- Separation caused by the other spouse's mental illness
- Separation due to incompatibility
Dividing the Property
In Delaware, assets and debts acquired during marriage - called "marital property" - are divided "equitably" upon divorce. In making its equitable distribution awards, the courts may make monetary awards, divide jointly owned property by transfers to spouses, or order property sold, with proceeds given to one or both of them.
Equitable division doesn't always mean even division. Courts strive for a fair division, and look at several factors in deciding these issues. Factors include monetary and non-monetary contributions by each spouse to the marriage and family, and how marital property was acquired and cared for.
You keep your "separate property" Separate property includes the following:
- Assets you had before marriage if you kept that property separate
- Income produced by a separate property investment as long as it hasn't been "commingled" - mixed together with marital property
- Property you inherited from your family during your marriage if it was willed exclusively to you and it wasn't commingled
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Delaware divorce lawyer and it can save you a lot of time and money.
Alimony
A court can order alimony for either spouse only if that spouse depends on the other for support, lacks property to provide support, a suitable job won't provide support or has custody of a child whose care prevents working.
If the court finds a need for alimony, it looks at several factors in determining amount and duration. If the court finds that one spouse is dependant upon the other spouse, the court will then consider various factors, including those listed below, in order to determine the amount and duration of alimony:
- Financial resources of person seeking alimony
- Time and expense needed for spouse to gain education or training required to find a suitable job
- Standard of living established during the marriage
- Marriage duration
- Age, physical and emotional condition of both parties
- Financial or other contribution made by either person to the education, training, vocational skills, career or earning capacity paying spouse
- Payor spouse's needs and ability to pay support
- Tax consequences
- Whether either person has foregone or postponed economic, education or other employment opportunities during the marriage
Marital misconduct is not considered by the court when it is making an alimony determination. The duration of alimony is not to exceed 50 percent of the term of the marriage, unless marriage lasted for 20 years or longer.
Alimony modification must be based on a real and substantial change of circumstances, such as job loss. However, alimony automatically ends when the recipient dies, remarries or cohabitates, unless a written agreement directs otherwise.
Child Custody and Visitation
Courts decide child custody and living arrangement issues based upon what is in the best interests of the child. Courts consider all relevant factors including:
- The wishes of the child's parent or parents
- The wishes of the child as to his or her custodian and residential arrangements
- The child's interaction with family members
- The child's adjustment to his or her home, school and community
- The mental and physical health of all individuals involved
- Past and present compliance by both parents with their rights and responsibilities to their child
- Evidence of domestic violence
- Criminal history of any party or any other resident of the household
Custody types include joint or sole legal custody, with visitation rights for the non-custodial parent. The court's decision is guided by the goal to allow the child to have a meaningful relationship with both parents. Custody and visitation are restricted only when contact with a parent risks endangerment to a child's physical or emotional well-being and development.
Delaware law specifies both parents' rights to access to and participation in a child's school and life activities. This includes access to medical and school records, attending school, activity and religious events. State law ensures a parent's access to a child by phone and mail.
State law limits how and when a custody order can be modified. If you seek a change, you file an application for modification. If you file within two years of the court's most recent custody order, you need to show physical endangerment or significant risks to emotional health. If it's more than two years since the last custody order, the standard changes, and the court looks at whether the benefit from change outweighs the harm from the change.
The court rules on visitation issues if the parents don't agree on a schedule. Court-ordered visitation is usually every other weekend, one night per week, and alternating holidays and school vacations, including summer vacations. A visitation order may be modified at any time if it would be in the best interest of the child.
Child Support
The Delaware Child Support Formula, also called the Melson formula, is used to set the amount of the support order. The formula is based on both parents' incomes and the child's needs. You can challenge the formula-based amount, and special circumstances may support a different amount. A non-custodial parent may expect to pay child support until the child is the 18 years of age; 19 if still in high school. A child support order can be modified if it is in the best interests of a child.
Parents who fail to pay support may be charged with contempt of court, and other remedies such as jail or license suspension.
Questions for Your Attorney