Delaware General Assembly

CHAPTER 350

FORMERLY

HOUSE BILL NO. 610

AS AMENDED BY SENATE AMENDMENTS NO. 1 AND 2

AN ACT TO AMEND CHAPTER 15, TITLE 13 OF THE DELAWARE CODE RELATING TO DIVORCE AND ANNULMENT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Chapter 15, Title 13 of the Delaware Code, by striking said Chapter in its entirety and substituting in lieu thereof the following:

CHAPTER 15. DIVORCE AND ANNULMENT

§ 1501. Short title

This Chapter shall be known and may be cited as the Delaware Divorce and Annulment Act.

§1502. Purpose; construction

This Chapter shall be liberally construed and applied to promote its underlying purposes, which are:

(a) to promote the amicable settlement of disputes that have arisen between parties to a marriage;

(b) to mitigate the potential harm to spouses and their children caused by the process of legal dissolution of marriage;

(c) to make the law of divorce more effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for divorce;

To permit dissolution of a marriage where the marriage is irretrievably broken despite the objections of an unwilling spouse;

(e) To award alimony only to respondents divorced on account of incompatibility or mental illness who are dependent upon petitioner for support but only during the continuance of such dependency;

(f) To award alimony in appropriate cases so as to encourage respondents to become self-supporting;

(g) Not to award alimony to petitioners who seek divorce for any reason and reject the respondent as a spouse.

§1503. Definitions

For purposes of this chapter, unless the context indicates differently:

"Commencement of the action" means the time of filing the petition.

"Court" means Superior Court of the State of Delaware.

"Incompatibility" means marital rift or discord that has destroyed the marriage relation, without regard to the fault of either party.

"Mental illness" means mental incapacity or infirmity so destructive of the marriage relation that petitioner cannot reasonably be expected to continue in that relation.

"Misconduct" means conduct so destructive of the marriage relation that petitioner cannot reasonably be expected to continue in that relation; and "misconduct" includes, as examples, adultery, bigamy, conviction of a crime the sentence for which might be incarceration for one or more years, repeated physical or oral abuse directed against petitioner or children living in the home, desertion, homosexuality, lesbianism, willful refusal to perform marriage obligations, contracting venereal disease, habitual intemperance, habitual use of illegal drugs or other incapacitating substances, and/or other serious offenses destructive of the marriage relation.

"Prothonotary" means Prothonotary of the Superior Court.

"Separation" means living separate and apart without any cohabitation for 6 or more months immediately preceding the hearing to determine whether a divorce should be granted, commencing no later than the date of verification of the petition; but separation may commence and continue while the parties reside under the same roof if severance of the marriage relation is complete.

"Voluntary separation" means a separation by mutual consent or acquiescence.

§1504. Jurisdiction; residence; procedure

(a) The Superior Court of the State of Delaware has jurisdiction over all actions for divorce and annulment of marriage where either petitioner or respondent, at the time the action was commenced, actually resided in this State, or was stationed in this State as a member of the armed services of the United States, continuously for 3 or more months immediately preceding the commencement of the action.

(b) The procedure in divorce and annulment shall conform to the rules of the Court where the same do not contravene this title.

§1505. Divorce; marriage irretrievably broken; defenses; efforts at reconciliation

(a) The Court shall enter a decree of divorce when it finds that the marriage is irretrievably broken.

(b) A marriage is irretrievably broken where it is characterized by (1) voluntary separation, or (2) separation caused by respondent's misconduct, or (3) separation caused by respondent's mental illness, or (4) separation caused by incompatibility, where reconciliation is improbable.

(c) Previously existing defenses to divorce including, but not being limited to, condonation, connivance, collusion, recrimination, insanity and lapse of time are abolished.

() The only defense to a divorce action shall be the failure to establish: Either (1) the marriage of the parties, or (2) jurisdictional requirements of section 1504, or (3) that the marriage is irretrievably broken.

(a) Efforts at reconciliation shall not be deemed to interrupt any period of living separate and apart.

§1506. Annulment

(a) The Court shall enter a decree of annulment of a marriage entered into under any of the following circumstances:

(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs, or other incapacitating substances;

(2) a party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not, at the time the marriage was solemnized, know of the incapacity;

(3) a party was less than legal age and did not have the consent of his parents or guardian or judicial approval as provided by law;

(4) one party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage;

(5) one or both parties entered into the marriage under duress exercised by the other party, or a third party, whether or not such other party knew of such exercise of duress;

(6) one or both parties entered into the marriage as a jest or dare; or

(7) the marriage is prohibited and void or voidable as provided in section 101 of this title.

(b) A decree of annulment may be sought by any of the following persons, and a petition therefor must be filed within the times specified below, but in no event may a decree of annulment be sought after the death of either party to the marriage, except as provided in this section:

(1) for the reasons set forth in either (1), (4), (5) or (6) of subsection (a) of this section, by either party to the marriage who was aggrieved by the condition or conditions, or by the legal representative of the party who lacked capacity to consent, no later than 90 days after petitioner obtained knowledge of the described condition.

(2) for the reason set forth in (2) of subsection (a) of this section, by either party no later than 1 year after petitioner obtained knowledge of the described condition.

(3) for the reason set forth in (3) of subsection (a) of this section, by the underaged party, his parent, or guardian, no later than 1 year after the date the marriage was entered into.

(4) a decree of annulment for the reason set forth in (7) of subsection (a) of this section, may be sought by either party, by the legal spouse in case of bigamous, polygamous or incestuous marriages, by the appropriate state official, or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor, or administrator of the estate, or prior to 6 months after an order of distribution is made under chapter 23, title 12.

(c) Children born of an annulled marriage are legitimate. Marriages annulled under this section shall be so declared as of the date of the marriage.

(d) The provisions of this chapter relating to separation agreements and the property rights of spouses are applicable to annulment.

§1507. Petition for divorce or annulment

(a) A petition for divorce or annulment of marriage shall be captioned:

IN THE SUPERIOR COURT

OF THE STATE OF DELAWARE

IN AND FOR _________ COUNTY

In re the Marriage of

____________________ ,

Petitioner,

AND No. _________, 19__

____________________ ,

Respondent.

PETITION FOR DIVORCE (OR ANNULMENT)

(b) The petition shall be verified by petitioner and shall set forth:

(1) the age, occupation, and residence (including county in Delaware) of each party and length of residence in the State, showing compliance with the jurisdictional requirements of section 1504 (a) of this title;

(2) address where it is most likely that mail will be received by respondent, or that no such address can be ascertained with reasonable diligence ;

(3) under proper circumstances, that it is unlikely that jurisdiction can be acquired over respondent other than by mailing or publication of notice as provided in section 1508 of this title;

(4) if respondent is a foreign national or has resided in a foreign country within 2 years prior to the filing of the petition, the address of a representative (preferably the nearest) of such foreign country in the United States;

(5) the date of the marriage and the place at which it was registered ;

(6) the date on which the parties separated;

(7) the names, ages and addresses of all living children of the marriage and whether the wife is pregnant;

(8) whether there have been any prior matrimonial proceedings between the parties and, if so, the date, name and place of the court, and the disposition of the same;

(9) reference to any agreement specified in section 1516 of this title;

(0) an allegation that the marriage is irretrievably broken and how it is characterized; or if the petition is for annulment, averment of the applicable circumstances specified in section 1506 (a) and that the petition has been filed within the applicable time limit recited in section 1506 (b) of this title;

(1) any other relevant facts;

(2) relief prayed for.

(c) The petition shall be filed with the Prothonotary in the county wherein petitioner resides or in the county wherein respondent resides along with such deposit to cover costs as the Court may fix and a praecipe instructing the Prothonotary how jurisdiction is to be acquired over respondent.

§1508. Obtaining jurisdiction over respondent

(a) After the filing of the petition jurisdiction may be acquired over respondent in any of the following ways :

(1) by issuance of summons by the Prothonotary, and service thereof by the Sheriff upon respondent, by delivering a copy of the summons, petition and any affidavit to respondent personally or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process;

(2) by appearance of respondent, either personally or by executing and filing an appearance document in a form approved by the Court, with or without issuance of summons;

(3) by appearance of counsel for respondent, with or without issuance of summons;

(4) under a Court rule not inconsistent with the provisions of this section.

(b) If the petition avers that it is unlikely that jurisdiction can be acquired over respondent except by mailing and publication, or by publication only, whether respondent is a resident or non-resident of this State, jurisdiction may be acquired over respondent by mailing and publication, or by publication only, under subsection (d) of this section.

(c) If an effort has been made unsuccessfully to obtain jurisdiction over respondent as provided in subsection (a) of this section, then jurisdiction may be acquired over respondent by mailing and publication, or by publication only, under subsection (d) of this section.

(d) When service is to be made upon respondent by mailing and publication, the Prothonotary shall:

(1) send a copy of the summons, petition and any affidavit to respondent by registered or certified mail, return receipt requested, to the address that petitioner had averred it is most likely that mail will be received by respondent; and

(2) cause a notice in the form prescribed by subsection (e) of this section to be published once in a newspaper of general circulation in the county where the action is pending.

If petitioner has averred that he knows of no address where it is most likely that mail will be received by respondent there shall be no mailing.

No further notice shall be required unless the Court, deeming the circumstances exceptional, requires further notice.

(e) The form of notice shall be as follows:

NOTICE OF DIVORCE (OR ANNULMENT) ACTION

TO: (John R. Doe), Respondent

FROM: PROTHONOTARY OF THE SUPERIOR COURT,

(NEW CASTLE) COUNTY, DELAWARE

(Mary C. Doe), petitioner, has brought suit against you for divorce (or annulment in the Superior Court of the State of Delaware in and for (New Castle) County, in Civil Action No. ______, 19_. If you do not serve a response to the petition on petitioner's attorney (John C. Dodge, 400 Delaware Avenue, Wilmington, Delaware) within 20 days after the last day of publication of this notice as required by statute, the action will be tried without further notice by the Superior Court in (Wilmington).

(f) When the petition avers that respondent is a resident of this State, the summons shall be delivered to an officer for service in the county where it appears most likely that service can be effected on respondent.

() The expense of mailing and publication shall be taxed as part of the costs of the case.

(a) Original process, whether an original, alias or pluries writ, is returnable 20 days after the issuance of the writ, except that the Court by rule, or by order after application for cause shown, may provide that the writ be returnable sooner or later.

§1509. Interim orders pending final hearing

(a) Petitioner in the petition for divorce or annulment, or by motion filed simultaneously with the petition, or either party by motion filed after the filing of the petition, may move for one or more of the following interim orders:

(1) for temporary alimony for himself or herself;

(2) restraining a party from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures made after the order is issued ;

(3) enjoining a party from molesting or disturbing the peace of the other party;

(4) excluding a party from the family home or from the home of the other party even though such party has a legal or equitable interest in the same, upon a showing that physical or emotional harm might otherwise result;

(5) requiring a party to make available to his or her spouse designated personal property and/or fixtures, even though titled in such party's name alone or jointly with someone else, upon such terms and conditions as the Court may impose ;

(6) requiring one party to pay such sum to the other party as deemed necessary to defray the other party's expenses in conducting the proceedings.

(b) A motion shall be accompanied by an affidavit setting forth the factual basis for the motion and any amounts of money requested. The Court may issue any of the above orders solely or collectively without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury would result to the moving party if an order were not issued until the time for responding has elapsed.

§1510. Enforcement of interim orders

Whenever there is exhibited to any duly authorized sheriff, constable or police officer a certified copy of an order issued by the Court in an action for divorce, or annulment, enjoining any person from threatening, beating, striking, assaulting any other person, or requiring the person to remove himself from certain premises and to refrain from loitering, entering, or remaining near the premises thereafter and the copy of the order shows under signature of the person so serving that a copy of the order has been properly served upon the person named in the order and the person named commits an apparent violation of its terms, it shall be the duty of the sheriff, constable or police officer to take him immediately before the Court issuing the order or if that Court is not in session then to the nearest jail until bail is fixed and provided or until the convening of its next session, to await further action for the violation.

§1511. Response; counterclaim; prayers; no default judgment; reply to counterclaim

(a) Respondent may file a verified response, move or otherwise plead in answer to the petition, and may counterclaim for divorce or annulment against petitioner, within 20 days after personal service, receipt of service by mail, appearance personally or by counsel, or the date of publication of notice.

(b) Respondent may seek an award of interim relief under section 1509 of this title, alimony where appropriate under section 1512, incorporation or recognition of a separation agreement, disposition of property, attorneys fees, resumption of former name or any other relief available to a petitioner.

(c) Respondent's failure to respond to the complaint shall not entitle petitioner to a default judgment.

(d) Petitioner may reply, move or otherwise plead in response to a counterclaim for divorce or annulment within 20 days after service of the counterclaim but failure of petitioner to respond to a counterclaim shall not entitle respondent to default judgment.

(e) For good cause shown, the Court may extend the time stipulated for responding to the petition or a counterclaim.

§1512. Alimony in divorce actions; waiver or release

(a) The Court may grant an alimony order for respondent if the petition for divorce avers that the marriage is. irretrievably broken because of incompatibility or mental illness and respondent, or someone on his or her behalf, shall aver in an affidavit filed in the action and prove by a preponderance of the evidence that respondent:

(1) is dependent upon petitioner for support but petitioner is not contractually or otherwise obligated to support respondent after the entry of a divorce decree;

(2) lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and

(3) is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

(b) The alimony order shall be in such amounts and for such periods of time as the Court deems just, without regard to marital misconduct, and after considering all relevant factors including:

(c) A respondent who has, contractually, waived or released his or her right to alimony shall have no remedy under this section.

(d) The provisions of this section have no application to an annulment action.

§1513. Disposition of marital property; imposition of lien; insurance policies

(a) In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:

(1) the length of the marriage;

(2) any prior marriage of the party;

(3) the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;

(4) whether the property award is in lieu of or in addition to alimony;

(5) the opportunity of each for future acquisitions of capital assets and income;

(6) the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker or husband;

(7) the value of the property set apart to each party;

(8) the economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;

(9) whether the property was acquired by gift, bequest, devise or descent; and

(10) the debts of the parties.

(b) For purposes of this chapter only, "marital property" means all property acquired by either party subsequent to the marriage except:

(1) property acquired in exchange for property acquired prior to the marriage;

(2) property excluded by valid agreement of the parties;

(3) the increase in value of property acquired prior to the marriage.

(c) All property acquired by either party subsequent to the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in paragraphs (1) through (3) of subsection (b) of this section.

(d) The Court may also impose a lien or charge upon the marital property assigned to a party as security for the payment of alimony or other allowance or award for the other party.

(e) The Court may also direct the continued maintenance and beneficiary designations of existing policies insuring the life of either party. The Court's power under this subsection (e) shall extend only to policies originally purchased during the marriage and owned by or within the effective control of either party.

§1514. Resumption of maiden or former name

The Court, upon the request of a party by pleading or motion, may order that such party resume her maiden name or the name of a former husband.

§1515. Attorney's fees

The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

§1516. Hearings; impoundment; assignment of counsel; defense by relative

(a) All hearings and trials shall be conducted in private by the Court sitting without a jury, and not by any master, referee or other delegated person ; but for reasons appearing sufficient to the Court, any hearing or trial may be opened to any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the Court.

(b) No hearing to determine whether to grant a divorce decree shall be held unless, on the date of the hearing, the parties are separated and have been separated for not less than 6 months immediately preceding the date of the hearing.

(c) No record or evidence in any case shall be impounded or access thereto refused.

(d) In all uncontested cases, and in any other case where the Court deems it necessary or proper, a disinterested attorney may be assigned by the Court actively to defend the case. A fee for such attorney shall be allowed by the Court and taxed as part of the costs.

§1517. Findings; opportunity for counseling; disposition of Prayers for relief

(a) If the petitioner avers that the marriage is irretrievably broken and respondent does not deny it, there is a presumption of such fact and, unless controverted by the evidence, the Court shall, after a hearing at which only petitioner need testify, make a finding that the marriage is irretrievably broken. If the Court shall not be satisfied from the evidence that the marriage is irretrievably broken, it shall deny the petition.

(b) If the petitioner shall aver that the marriage is irretrievably broken but respondent shall deny that averment under oath or affirmation, the Court shall consider the evidence an& after a hearing, shall:

(1) make a finding whether the marriage is irretrievably broken; or

(2) continue the matter with the consent of both parties for further hearing not more than 60 days later so that the parties may seek counseling, either with a qualified private counselor or an accredited counseling agency, public or private. No party who objects shall be forced to submit to counseling, and all counseling or interviews shall be confidential and privileged and only the fact that further efforts at reconciliation are impractical or not in the interest of the parties shall be reported to the Court. At the adjourned hearing the Court shall finally determine whether the marriage is irretrievably broken.

§1518. Decree in divorce or annulment proceedings; costs; notice of entry; effect on mentally incompetent spouse; effect on subsequent petitions

(a) A decree granting or denying a petition for divorce or annulment is final when entered, subject to the right of appeal. An appeal from a decree granting a divorce that does not challenge the finding that the marriage is irretrievably broken or an appeal from a decree granting an annulment that does not challenge the finding that the marriage should be annulled, does not delay the finality of that provision of the decree beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

(b) In the decree granting or denying a petition for divorce or annulment, or in a separate order entered after the entry or denial of a decree of divorce or annulment, the Court shall dispose of all prayers or requests concerning alimony, disposition of property, a separation agreement, resumption of former name and other incidental or collateral matters relevant to the decree, where appropriate under the facts and law, but (1) an application for relief therefor must have been presented to the Court before the hearing to determine whether a divorce or annulment decree should be granted and (2) an application for a hearing therefor must have been made to the Court before or at the time of the entry or denial of a decree of divorce or annulment.

(c) Court costs, including the fee for the services of an attorney fixed by the Court, shall be taxed by the Court at the time of the granting or denial of a decree or order and made payable as adjudged by the order. The Court may enforce the payment of costs by attachment process.

(d) The Prothonotary shall give notice of the entry of a decree of divorce or annulment:

(1) if the marriage is registered in this State, to the Clerk of the Peace of the county where the marriage is registered and such clerk shall enter the fact of divorce or annulment in his records; or

(2) if the marriage is registered in another jurisdiction, to the appropriate official of that jurisdiction, with the request that he enter the fact of divorce or annulment in the appropriate record.

(e) No decree that may enter shall relieve a spouse from any obligation imposed by law as a result of the marriage for the support or maintenance of a spouse adjudicated to be mentally incompetent prior to the decree, unless such spouse has sufficient property or means of support.

(f) A decree denying a petition for divorce or annulment shall not foreclose a subsequent petition for such relief if the subsequent petition involves factual or legal premises not directly or by necessary implication decided by the decree on the former petition.

§1519. Modification and termination of provisions for alimony and property disposition

(a) Except as otherwise provided in section 1515 of this title the provisions of any decree respecting alimony may from time to time be modified or terminated only upon a showing of a real and substantial change of circumstances. The provisions as to property disposition, or the terms of a property settlement, may not be revoked or modified, unless the Court finds the existence of conditions that justify the reopening of a judgment.

(b) Unless otherwise agreed by the parties in writing and expressly provided in the decree, the obligation to pay future alimony is terminated upon the death of either party or the remarriage of the party receiving alimony.

(c) Any alimony order entered pursuant to section 1512 of this title shall be enforced in this State exclusively by the Family Court in the county wherein the respondent resides or is found, or in the county where petitioner resides if respondent does not reside and cannot be found in this State, regardless of whether such petitioner was the petitioner or the respondent in the divorce action, and such Family Court, on proper showing of either of such petitioner or such respondent or on its own motion, may modify or terminate the support obligation decreed by the Superior Court; but if it shall be made to appear to the Superior Court that entered such order that no Family Court of any county in this State shall have jurisdiction to entertain proceedings with respect to an order entered under section 1512, for whatever the reason, then the Superior Court that originally entered such order shall enforce the same, and such Superior Court, on a proper showing by either such petitioner or such respondent or on its own motion, may modify or terminate the support obligation decreed thereby.

§1520. Independence of provisions of decree or temporary order

If a party fails to comply with a provision of a decree or temporary order, the obligation of the other party to make alimony payments is not suspended; but he may move the Court to grant an appropriate order.

§1521. Decrees of courts of other states and countries

Full faith and credit shall be given in all the courts of this State to a decree of divorce or annulment of marriage by a court of competent jurisdiction in another state, territory, or possession of the United States. Nothing herein contained shall be construed to limit the power of any court of this State to give such effect to a decree of divorce or annulment by a court of a foreign country as may be justified by the rules of international comity.

Section 2. This act shall become effective 30 days after the day on which it is enacted into law. Actions commenced prior to the effective date of this act shall be governed by the provisions of Chapter 15, Title 13, operative prior to such effective date and those provisions shall remain in effect as to those actions as if this act were not in effect.

Section 3. Nothing in this act shall be construed to affect any right, duty or liability arising under any statutes in effect immediately prior to the effective date of this act, but the same shall be continued and concluded under such prior statutes. Nothing in this act shall revive or reinstate any right or liability previously barred by statute.

Section 4. If any provision of this act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

Approved June 4, 1974.