Marital Legal Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts effective Immediately
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Delaware, but does include
basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective immediately,
or may be entered into after the divorce is filed to settle a case.
Generally treated as contracts between the parties, the court will
examine the provisions of the Agreement, with the exception of child support,
under contract principles.
The stipulation, merger, or incorporation of the parties' agreement
into a court order does not divest that agreement of its contractual nature.
Unlike a prior judicial determination of alimony, the Family Court cannot
modify an agreement between the parties regarding alimony, pursuant to
the "real and substantial change" statutory standard.
Statutes:
Title 13 Domestic Relations
Chapter 5 Desertion and Support
Jurisdiction in Family Court; termination of chancery jurisdiction:
(a) The Family Court of the State shall have exclusive
original jurisdiction over all actions arising under this chapter. The
Court shall have exclusive jurisdiction over the construction, reformation,
enforcement and rescission of agreements made between future spouses, spouses
and former spouses concerning the payment of support or alimony, the payment
of child support or medical support, the division and distribution of marital
property and marital debts and any other matters incident to a marriage,
separation or divorce. The Court shall have jurisdiction to resolve any
issues resulting from the construction, reformation, enforcement or rescission
of an agreement. In this regard, the Court shall apply the statutory factors
set forth in Chapters 5, 6 and 15 of this title. The Court shall have and
exercise all other jurisdiction and powers relating to support and separate
maintenance actions heretofore possessed by the Chancellor or the
Court of Chancery of the State. § 507.
Jurisdiction; residence; procedure:
(a) The Family Court of the State 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 6 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. §
1504.
Decree in divorce or annulment proceedings; costs; notice of entry;
effect on mentally incompetent spouse; effect on subsequent petitions;
temporary alimony:
(a) A decree granting or denying a petition for divorce
or annulment is final when entered, subject to the right of appeal. An
appeal that does not challenge the decree of divorce or annulment, but
challenges only rulings with respect to relief awarded under other sections
of this chapter, or other matters incidental or collateral to such decree,
shall not delay the finality of the decree of divorce or annulment, and
the parties may remarry while the appeal is pending.
(b) Whenever the Court enters a decree granting a petition
for divorce or annulment, a certified copy of such decree shall be made
available to the parties within 30 days after such ruling; but following
a contested proceeding, such a copy of the decree shall only be made available
to the parties 30 days after such ruling, and after the furnishing of such
proof as the Court may require that no appeal challenging the decree of
divorce or annulment is pending.
(c) In the decree granting or denying a petition for divorce
or annulment, or by separate order or orders preceding or following such
decree, the Court shall dispose of all other prayers for relief, where
appropriate under the facts and law; but an application for such relief
and a hearing thereon must be presented in the petition or response, or
by motion after notice to the other party prior to the entry or denial
of such decree.
(d) Court costs, including any fee for the services of an
attorney allowed by the Court, shall be taxed by the Court at or about
the time of the granting or denial of the decree of divorce or annulment,
at the time of disposition of other prayers for relief in accordance with
subsection (c) of this section, following the disposition of an appeal,
or at such other time or times as the Court may deem appropriate.
(e) The Clerk of the Family Court 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 or her records;
or
(2) If the marriage is registered in another jurisdiction, to the
appropriate official of that jurisdiction, with the request that he or
she enter the fact of divorce or annulment in the appropriate record.
(f) 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.
(g) 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.
(h) Every decree granting a petition for divorce or annulment
shall include the social security number of each party. § 1518.
Modification or termination of decree or order; termination of alimony;
enforcement of alimony order:
(a) A decree or separate order entered under §
1518 of this title may be modified or terminated only as follows:
(1) Support for a child, only as provided in Chapter 5
of this title, or otherwise;
(2) Custody and/or visitation of a child, only as provided in Chapter
7 of
(3) Property disposition, only upon a showing of circumstances
that would justify the opening or vacation of a judgment under the Rules
of the Superior Court of this State;
(4) Alimony or any other relief awarded, only upon a showing of
real and substantial change of circumstances.
(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 § 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 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 support
obligations formerly decreed by the Superior Court. § 1519.
Case Law:
It is settled Delaware law that, in the absence of a provision in
a separation agreement to the contrary, an unfavorable change in financial
circumstances is not a valid defense to specific performance of the agreement."
Dumel v. Dumel, Del. Ch. , 213 A.2d 859 (1965).
Parents are not precluded from contracting with respect to the support
of their children, but they may not, by agreement, prevent in futuro the
re-examination by a court of the adequacy of the support for minor children
agreed upon by the parents. It is only when the parents' contract is consistent
with the welfare and best interests of the child that the agreement for
support may be given controlling effect. In re Two Minor Children,
3 Storey 565, 173 A.2d 876 (Del. 1961).
Regarding alimony awards, the stipulation, merger, or incorporation
of the parties' voluntary agreement into a court order does not divest
that agreement of its contractual nature. 13 Del. C. § 1519(b). Unlike
a prior judicial determination of alimony, the Family Court cannot modify
an agreement between the parties regarding alimony, pursuant to the "real
and substantial change" statutory standard enunciated in 13 Del. C. §1519(a)(4).
Rockwell
v. Rockwell , 681 A.2d 1017 (Del.Supr.1996).
