Divorce may be defined as the legal termination of a marriage. Married couples do not have a legal or a constitutional right to seek a divorce, but states commonly grant divorces because to force a couple to stay married would be considered against public policy.

“No-fault” and “fault” are the two types of grounds, or justifications, for divorce in the United States. In some states, such as Delaware, no-fault is the only acceptable justification for divorce, even if fault grounds subsist within the marriage. Other states allow the members of a couple to select either a no-fault or a fault divorce.

The United States first adopted the concept of a no-fault divorce in the late 1960’s, and nearly all of states currently allow for some form of it. A no-fault divorce is one in which the people involved do not legally fault, or blame, one another for the divorce. Some examples of grounds for a no-fault divorce include, “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.”

In Delaware, the only available basis for a no-fault divorce is that the marriage is irretrievably broken with no probable reconciliation. In order to qualify for a divorce in Delaware, the petitioner must prove one of the following: voluntary separation, separation caused by the misconduct of the other spouse, separation caused by the mental illness of the other spouse, or separation caused by incompatibility of the spouses. For a full explanation of Delaware divorce law, go to lawyers.com.

Many states require a “cooling-off” period of separation for a specific period of time before no-fault divorce proceedings can begin. During this time, the couple is required to live separate and apart with the intent that the separation will become permanent. The duration of the cooling-off period varies according to state law.  In Delaware, the mandatory cooling-off period is six months.

There are several “defenses,” or denials, that are sometimes used pertaining to a divorce. In Delaware, the only divorce action defense is the failure of the party seeking the divorce to establish either the legal marriage of the parties, the state jurisdictional requirements, the proof that the marriage is irretrievably broken, or the evidence of condonation, connivance, recrimination, insanity, or lapse of time resulting from a spouse’s misconduct. For more information, go to divorcenet.com.

The condonation defense is sometimes used when a party condoned a certain spousal behavior during the marriage and then attempts to use that same behavior as a fault ground for divorce. Connivance is when one spouse sets the other up for wrongdoing and then later uses this as a basis for a fault divorce. Recrimination may apply when there is evidence that both spouses have committed adultery. The insanity defense must typically include documentation or testimony of a medical or psychiatric nature. Lapse of time is an unreasonable delay between service of the summons and complaint and the commencement of the divorce action. For useful divorce forms, go to divorcerecoverysuite.com.

The grounds required for divorce vary widely across the United States. The American Bar Association provides a variety of information regarding divorce requirements state by state on their Section of Family Law website. A chart comparing all 50 states, including Delaware, can be found at abanet.org.

*An example of a Delaware Divorce Settlement Agreement can be seen on Free Legal Aid.