The Delaware Separation: An Introduction
When it comes to dissolving a marriage in Delaware, people always think of getting a divorce… but did you know there is another option? Legal separation is frequently, and mistakenly, viewed as a lesser substitute for divorce. It actually has some advantages. Legal separation is more like a divorce than people think. But it is not the same as living apart. It is a recognized status, with legal repercussions that can be important to your future. Separating gives couples much of the same benefits as a divorce , but allows them to remain married and avoid conflicting feelings about whether they should remarry in the future.
Legal separation is a state of marital status that protects couples from making hurried decisions to end a marriage. Legally separating releases spouses from certain marital responsibilities as they try to determine whether to continue with the relationship or end it by divorce. Separation can give you more time to adjust from married to single status and to begin to plan for your future. Separation is also something all couples can agree on.
How to Separate in Delaware
When considering a separation in Delaware, it is essential to understand the legal grounds upon which such a separation may be pursued. The state of Delaware recognizes three primary legal grounds for seeking a separation: adultery, desertion, and cruel and inhuman treatment.
Adultery requires that one spouse commit sexual relations with a person other than their spouse. This is the most concrete of the legal grounds for separation and is usually proven by evidence of the extramarital affair, such as witness testimony or photographs.
Desertion, on the other hand, is somewhat more complicated. This legal ground for separation requires proof that one spouse abandoned the other for a period of at least one year. The statute also provides a list of conditions that must be met for desertion to be considered: (1) the intentional abandonment of one spouse by the other; (2) without justification; (3) with the intent of never returning; (4) and for a period of 6 months or longer. The statute does allow dimorphic acts as a form of justification for abandonment though. Dimorphic acts are actions that would cause a reasonable person to be overcome with emotion to the point that they cannot rationally respond. This may include physical or emotional abuse.
Cruel and inhuman treatment is very similar to dimorphic acts, but is not restricted to extreme physical and/or emotional abuse. Cruel and inhuman treatment is pretty much anything that no reasonable person would want to endure in a marriage.
The Separation Agreement Process
The separation agreement is the "tail" of the case that you can never cut off. It is effectively your "deal". The separation agreement works to settle many, if not all, of the family and other claims between two otherwise interested parties. We have previously provided a "check-list" of items that can be included in an agreement. Most, if not all, points on that list will be addressed (unless the issues are foregone legal conclusions). As with setting out the terms of a marriage in the prenuptial agreement or marriage contract, the terms of a separation agreement should – if at all possible – provide as much detail as necessary so that the parties do not return to Court to seek to enforce the agreement.
A separation agreement generally includes the following provisions: (1) termination date of the marriage; (2) identification of property to be sold or retained; (3) how any outstanding debts will be paid and whether either party will be held harmless if there are any joint debts; (4) how specific items of property will be allocated, both with respect to tangible items and interests in companies, corporations and partnerships and other intellectual property interests; (5) who will pay alimony (either rehabilitative or permanent alimony); (6) what types of insurances will be maintained to benefit the parties and children, if any; (7) how the tax returns and deductions for dependents will be treated, generally; (8) other relevant financial considerations.
Financial Obligations During Separation
The separation process is often an emotionally charged time. Emotions may be running high and you may not be able to think clearly about some of the decisions you need to make. While most married couples have some level of assets that need to be divided, both parties need to understand what is available to them during the initial separation period and where that money comes from. These are some of the major issues to consider:
How can I live without my spouse’s income?
It is important to remember that the standard of living you enjoyed when you were together may not be possible when you live apart. However, the law requires that both parties attempt to maintain the status quo after separation. In most cases the biggest financial needs are covered by interim alimony or child support. In the event of a hardship, an immediate Motion for Temporary Relief may be filed with the Court. This Motion will provide the Court with information regarding your finances and the circumstances that require immediate attention. Emergency Motions are not to be used for convenience; hence the reason they are reserved for emergencies only.
How do I pay for rent, food, and other living expenses after I leave the marital home?
The answer to this question will depend in large part upon who is occupying the marital home. If both parties remain in the marital home, it is presumed that the party presently making the mortgage payment will continue to make that payment after separation. If the party is an earner, he or she should obtain a new checking account so as not to commingle income. Funds used for daily living expenses should be paid from the new separate account. Generally, any additional funds left in the accounts would go towards mortgage payments. If one party moves out of the marital home and the other remains, the income earner would make his or her normal bills payments on behalf of the party remaining in the home. A Court Hearing will determine whether the income earner, or the party residing in the home gets credit for these payments. If one party moves out but continues to pay the mortgage payment, he or she will receive credit for that payment when dividing assets, as a monetary award.
What if my spouse takes all the marital funds and files for divorce?
If you are concerned that your spouse will clean out the marital accounts and file for divorce before you have an opportunity to get your "fair share," it is important to speak to an attorney before it happens. While a spouse can withdraw marital funds, there are limits. Amounts needed for normal household expenses may be withdrawn without prior consent of both parties.
It is likely the party maintaining the marital home will receive credit for that mortgage payment when dividing assets, as a monetary award from your spouse. If you feel there will be a risk of your spouse taking all marital funds and receiving a quick divorce, a protective order can be obtained quickly in the Pennsylvania Court system. A request for protection can include a restriction preventing your spouse from removing marital funds, or can place restrictions surrounding your family business. Having attorneys experienced in the processes of Divorce is beneficial, as large portions of marital funds can be spent on attorney fees if this lack of communication occurs.
Child Custody and Support During Separation
When a couple with children separate in Delaware, the issue of child custody and support becomes a paramount concern, both legally and emotionally. In most cases, the impact of a separation on child custody arrangements can be quite profound.
Delaware law provides that when a couple separates and they have children, issues relating to child custody and support may be addressed through a temporary order. A temporary order is meant to provide for the children’s wellbeing until a divorce order is finalized. This includes who has the right to make decisions about the child’s healthcare and education, where the child resides, and how parenting time for the nonresidential parent will be allocated.
In many instances, the custodial parent will continue to meet the needs of the child, even during a period of separation, because the child will likely be living with the custodial parent. However, as noted below, there are times when contested litigation or a voluntary agreement between parents may alter the status quo. As such, the following arrangements for custody and support are important to consider when a couple with children separates.
In a perfect world, parents would be able to come to an agreement on how best to share the care of their children while their divorce or separation is pending. Here, a non-contested proceeding may take place, with an agreement delineating how custody and parenting time will be allocated and, if necessary, what child support amount will be paid from one parent to the other. These temporary orders are highly dependent on individual family circumstances, but we have found that such arrangements make for an amicable way to divide time with the child and avoid costly litigation.
If parents are unable to come to an agreement pertaining to child custody and support, a contested area of litigation may be necessary. Here, a petition is filed with the court to adjudicate the issue—meaning the court judges the case based on what is presented by both sides to the case. A court may look to a number of factors before making a determination on what type of order is needed to protect the welfare of the child or children, including (but not limited to) each parent’s ability to maintain a stable environment for the child, the child’s relationship with each parent, and whether either parent is unfit to serve as the main custodian.
On a temporary basis, the court may order that one parent obtain a parenting coordinator to help resolve disputes pertaining to child custody. In addition, a Guardian Ad Litem can be appointed to represent the child in a legal proceeding, while a forensic custody evaluation may be ordered to assess caregivers, the child, and other factors that could weigh heavily on the outcome of a case. Alternatively, the court may take no action at all.
As mentioned earlier, the objective of a temporary custody order from the court is to maintain the status quo until a long-term solution to child custody and support is determined. Once a divorce is finalized, a final order regarding custody and parenting time is put in place.
Reconciliation of the Parties After Separation
In Delaware, there are two ways that you can reconcile or extend your period of separation. Either spouse may file a "motion for reconsideration" or a "motion to extend the petition for divorce." A motion for reconsideration does not require any fault-based basis, but rather a showing that reconciliation is in the interest of justice.
If you filed a petition for divorce but you and your spouse have since reconciled, either spouse can file a motion for reconsideration with the Court in order to voluntarily discontinue the divorce proceedings .
A motion to extend the petition for divorce is appropriate for those who would like to separate but stay married. Either spouse can file a motion to voluntarily discontinue a divorce and, instead, separate for 18 months.
If, after 18 months you have not yet reconciled your marriage, after the 18 months, either spouse can file for divorce. If the matter does proceed to trial, you will have a trial date approximately 2 months after you file your petition for divorce.
Going Through Divorce During Separation
A legal separation can be converted to a divorce by a request to the court and thereby allowing the grounds for the divorce to be based upon irreconcilable differences. The procedural effort to convert a legal separation to a divorce is exceptionally well covered in a recent Court of Chancery opinion.
The judge presiding over the motion to convert a legal separation to a divorce reviewed the issue and observed the following:
"While no party has cited to me any Delaware statute or case law that provides for the effective conversion of a Motion to Modify Custody into a Motion for Divorce, in effect that is the vehicle by which Russell seeks to obtain a divorce in this action. In this regard, Russell’s Motion to Modify Custody identifies the grounds as irreconcilable differences. To the extent that there are multiple procedural avenues to obtain a divorce where the parties stipulate to grounds, I believe it is appropriate to treat the Motion to Modify Custody as a Motion for Divorce and grant the conversion."
Getting Legal Help and Resources
Navigating the complexities of separation and divorce can be challenging without proper guidance. Fortunately, there are a number of legal resources available to residents of Delaware. A variety of legal aid societies offer information on the law and resources for access to lawyers in your area. Delaware has legal aid societies in each of its three counties: New Castle County Legal Aid Society, Sussex County Legal Aid Society, and Legal Aid Society of Delaware. The Delaware Court of Chancery, the court specializing in equity, helps residents understand how the court system works through their online guide, "The Legal System and You." This guide is a great resource on how to file court papers and how to work with the other side in settling disputes. The document also features a glossary of common terms related to divorce and family law, making it a valuable addition to any stranger’s legal library. There are many family law attorneys across the State of Delaware. But, not every family law attorney practices separation-related law. As such, it is important to ensure that you are working with an attorney who specializes in your type of case. Similarly, family law attorneys are typically licensed to practice in a specific state. It is important to ensure that your attorney is licensed in Delaware before hiring them to represent you.
Separation FAQs
How long do you have to be separated for a divorce in Delaware?
There is no specific time frame in Delaware that a couple must be separated before they can file for divorce. However, pursuant to Delaware divorce law, if a couple wants to file for divorce after a period of separation, the period must be for at least 6 months or 1 year before either spouse can file for divorce. If spouses have continuously lived in separate homes, without interruption, for at least 6 months, one can file for a "No-Fault Divorce," where one spouse must allege it is irretrievably broken. If they have lived in separate homes for at least 1 year, the divorce is deemed to be by Consent under Delaware divorce law.
To be considered living separate and apart , the couple must move out of the family home into separate homes or residence. Not only do the couple need to have lived separate and apart physically, they also must be living separate and apart from each other. There cannot be any marital cohabitation during this period of separation.
If you only need to be separated for 6 months, why wait a year or longer to get a divorce?
Couples may be able to reconcile a marriage after 6 months of separation. Couples may live in separate homes but still see each other and maybe even still have sex. If the couple can reconcile, they avoid going to court, although they will incur some costs to prepare a Voluntary Acknowledgment of Paternity, a Voluntary Marital Settlement Agreement, and file a divorce action.
How do I know if I am separated, legally separated, or divorced?