Uncontested vs. Contested Divorce in Delaware: Simplified Procedures and Mandatory Steps
Delaware uncontested and contested divorces share the six-month residence and separation rules and the preliminary injunction on property. The marriage is characterized as one of four kinds of irretrievable breakdown, and the defenses are limited.
What is the same in an uncontested and a contested Delaware divorce?
The six-month residence rule and the six-month separation rule apply to both, and the court enters a decree only when it finds the marriage irretrievably broken and reconciliation improbable (13 Del. C. 1505(a)). The Delaware divorce timeline calculator gives the same earliest ruling date for both.
| Item | Agreed (uncontested) | Disputed (contested) |
|---|---|---|
| Separation | 6 months before the ruling, unless the misconduct characterization applies | Same, with the respondent able to dispute the characterization |
| Characterization of the breakdown | Voluntary separation or incompatibility, usually | Misconduct, mental illness or incompatibility may be contested |
| Defenses | Only those in 1505(d) | Only those in 1505(d); more for misconduct marriages |
| Interim orders | Available after filing (1509) | Available after filing (1509) |
| Property and alimony | Settled by agreement | Decided by the court |
How is the marriage characterized in Delaware?
The petition must say how the marriage is irretrievably broken. A marriage is irretrievably broken where it is characterized by voluntary separation (by mutual consent or acquiescence), separation caused by the respondent’s misconduct, separation caused by the respondent’s mental illness, or separation caused by incompatibility (1505(b)). If the respondent denies the separation was voluntary, consent must be shown by a written agreement or by separate judicial proceedings the respondent began (1503(9)).
What defenses are allowed in Delaware?
Only a failure to establish the marriage, the jurisdictional requirements, that the marriage is irretrievably broken, or, for misconduct marriages only, the old defenses of condonation, connivance, recrimination, insanity and lapse of time (1505(c)-(d)). A spouse cannot otherwise block a divorce.
What happens to property while the case is pending in Delaware?
On the filing of the petition a preliminary injunction issues against both parties, barring them from transferring, encumbering, concealing or disposing of property except in the usual course of business or for necessities, and requiring notice of extraordinary expenditures (1509(a)). Interim alimony and other interim relief are available while the case is pending (1509, 1512(a)).
How do spouses show they are separated in Delaware?
By living separate and apart for six months, which can happen under one roof if the parties occupy separate bedrooms and have no sexual relations. Bona fide reconciliation efforts, even sharing a bedroom temporarily, do not interrupt the period if the parties have not shared a bedroom or had sexual relations in the 30 days before the hearing (1503(8), 1505(e)).
What children’s documents are required in Delaware?
If there are living children, the petitioner must file an affidavit showing that he or she has read or been advised of the statutory list of children’s rights, which starts with the right to a continuing relationship with both parents (1507(g)). See the Delaware parenting time calculator.
What changes in a contested Delaware divorce?
The court decides what the spouses cannot settle: property is divided in such proportions as the court deems just without regard to marital misconduct (1513(a)), alimony is decided under 1512 and custody on the child’s best interests under the custody chapter. See the Delaware property division calculator.
Frequently asked questions
Does an uncontested divorce skip the Delaware separation period?
No. The court makes no ruling until six months of separation unless the misconduct exception applies.
Can a Delaware spouse refuse to agree to a divorce?
Only on the limited defenses; a spouse cannot block a divorce by refusing to agree.
Are spouses frozen financially when a Delaware divorce is filed?
A preliminary injunction bars both from disposing of property except in the usual course of business or for necessities.
Does a Delaware reconciliation attempt restart the separation clock?
Not if the spouses did not share a bedroom or have sexual relations in the 30 days before the hearing.
Does Delaware require a parenting affidavit?
Yes, an affidavit that the petitioner has read the statutory children’s rights if there are living children.
Official sources
- Delaware Code Title 13, chapter 15: Divorce and Annulment
- Delaware Code Title 13, chapter 7, subchapter II: custody and visitation
- Delaware Family Court: child support formula instructions
- Delaware Family Court: child support calculator
A local family law attorney can review your situation — many offer a free consultation.
This is general information, not legal advice. It is based on the cited Delaware statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Delaware attorney.