Understanding Marriage Annulment in Delaware

In Delaware, an annulment is the legal process by which a court declares that a marriage (and its accompanying record) was never validly established. An annulled marriage is legally erased from the records as if it never existed. In contrast, a divorce dissolves a marital union.

Annulments are useful in instances where a party to a marriage did not consent to the union due to reasons such as mental illness, incapacity, or being under the influence of substances (drugs, alcohol, etc).

After an annulment, former spouses become legally single and are eligible to remarry. However, they are expected to obtain certified copies of the annulment decree as evidence that the annulment process has been completed.

Annulment case files may sometimes be included as part of Delaware’s family court records and are officially maintained pursuant to Title 13, Delaware Code §1504(a).

Grounds for Annulment in Delaware

Some reasons (grounds) why a Delaware court may annul a marriage include the following:

• One of the couples did not possess the capacity (ability) to give their consent to marriage, given that, at the time of the ceremony, that person had a significant mental illness or was under the influence of alcoholic beverages or drugs.
• One of the couples did not have the physical ability to complete the marriage through sexual intercourse and concealed this information from the other spouse.
• One of the spouses was underage and did not obtain the consent of a parent, guardian, or Delaware judge.
• One of the parties engaged in fraudulent practices or misrepresentations to trick the other person into entering into the marriage.
• One or both spouses entered the marriage under duress.
• One or both spouses consented to marry just as a joke or dare. Such a marriage is unlawful under Delaware law. This comprises bigamous marriages (in which a spouse is legally married to more than one person), polygamous marriages (in which a spouse has informal "marital" relationships with several spouses), and incestuous marriages (including blood relatives or close family members).

Eligibility Requirements for an Annulment in Delaware

Under 13 Del. C. §1506(a), an aggrieved party may file for annulment for reasons of incapacity (or the legal representative of a spouse who lacked capacity), fraud, duress, or "jest or dare". The aggrieved party is expected to file within 90 days of learning of the condition. Either spouse may file for annulment within one year of knowing about their partner's inability to consummate their marriage through sex.

For marriages regarded as unlawful, void, or voidable under §101 (e.g., incest or bigamy scenarios), those who may file for annulment (any time before the death of either party) include either spouse, the legal spouse in a bigamy case, a relevant state official, or a child of either party.

Residency and Court Jurisdiction

In Delaware, either of the parties in a marriage or civil union is expected to have resided (lived) in the state for at least six months to be eligible to file for annulment. They may also file for annulment if one of the spouses is a member of the armed forces and has been stationed in Delaware for at least 6 months before filing.

Couples in a civil union that do not reside in Delaware and whose state of residence does not permit the dissolution of civil unions may file for annulment in Delaware if their civil union was solemnized in the state.

In Delaware, civil annulments granted by courts are official and legally recognized under Title 13. Religious annulments issued by churches have no legal effect in civil law. Couples who get a religious annulment cannot remarry until they obtain a judicial annulment.

How to Get a Marriage Annulled in Delaware

In Delaware, the procedure for obtaining an annulment may vary by county or jurisdiction. Nonetheless, the general step-by-step process for getting an annulment in the state is outlined as follows:

Step 1: File the Petition for Annulment

The individual seeking the annulment (the petitioner) begins the process by filing a Petition for Annulment in the Family Court of the State of Delaware. In the document, the petitioner is expected to state the legal grounds for annulment.

Step 2: Service of the Petition and Response

After the plaintiff has filed in the relevant county, the respondent is typically served with the petition and summons. The respondent spouse is expected to file a response (within 20 days) with the Family Court. Failure to do so means the court will treat the case as uncontested. If contested, the case proceeds to a hearing before a Commissioner.

Step 3: Parent Education Class

For cases involving children under 17 years, couples are expected to complete the Parent Education Class and file the Certificate of Completion. The annulment cannot proceed to a hearing or to the issuance of a decree without the filing of this certificate.

Step 4: Request to Proceed Without a Hearing

A petitioner may ask the court to decide a case without a hearing if an annulment is uncontested. However, before this can take place, they are required to file a Request to Proceed Without a Hearing and an Affidavit in Support of Request. Subsequently, a Commissioner reviews all filed documents and issues a Decree of Annulment or Denial based on the written submission.

Step 5: Hearing Before a Judge

In contested annulment cases, a judge hears evidence, witnesses, and testimonies from both parties before deciding whether the marital union should be annulled.

Step 6: Issuance of the Decree of Annulment

The process ends with the Court issuing a Decree of Annulment. This report (decree) declares that marriage was void or voidable from inception under 13 Del. C. §1506.

Required Forms and Documentation for a Delaware Annulment

Some forms and documents needed to file for an annulment in Delaware are listed as follows:

• Petition for Annulment (Form 442): This is the official document used to begin the annulment process in the Delaware Family Court.
• Information Sheet (Form 240): This document provides information such as the spouses' names, contact and location details, and the length of the marriage.
• Original or certified copy of marriage or civil union certificate: The petitioner is expected to include this document as an attachment to their petition.
• Request for Notice (Form 400): This form ensures that the parties and their authorized representatives receive subsequent notices (e.g., hearing orders) after the case has been filed.
• Affidavit of Children's Rights (Form 279): This form is typically filed in situations where the Petitioner and Respondent have a child or children under 18 years of age.
• Affidavit of Unknown Address (Form 241): A form filed when the petitioner does not know the respondent's address; it supports requests for alternative service (e.g., publication).
• Affidavit of Non-Military Service (Form 405): This form is filed to establish that the respondent is not in U.S. military service when they do not respond to a petition or appear in court.
• Waiver of Rights under the Servicemembers' Civil Relief Act (Form 420): By appending their signature to this waiver, a respondent (who is in the military) waives their rights under the case to proceed without SCRA delays.
• Affidavit That a Party's SSN is Unknown (Form 421): The petitioner files this form when they do not know the respondent's Social Security Number and have been unable to obtain it.
• Request to Proceed Without a Hearing (Form 446): Used for uncontested cases. With this form, the petitioner asks the Court to decide the annulment on the papers (no hearing).
• Affidavit in Support of Request to Proceed Without a Hearing (Form 447): This sworn statement is paired with Form 446 and supports the petitioner's request for no hearing.
• Ancillary Financial Disclosure Report (Form 465): Optional form required if petitioner wants the court to rule on ancillary matters (e.g., property division, fees).
• Affidavit of Mailing (Form 850): This is filed by the Petitioner in ancillary matters to prove the Ancillary Financial Disclosure Report was mailed to the respondent.
• Form of Order – Ancillary Financial Disclosure Report (Form 449): Provides the proposed order for ancillary financial disclosures; Only submitted if the Court requests it.
• Ancillary Pretrial Stipulation (Form 466): This form states the facts and issues(what is contested and what is not) before an ancillary hearing.

Where to File for an Annulment in Delaware

The Family Court of the State of Delaware handles annulments. The Court has jurisdiction over all annulment actions (filing and hearing) in which either spouse has lived or been stationed in the state for at least six months immediately before filing. Petitioners may file for annulment in the Family Court for Delaware County, the county associated with the case (New Castle, Kent, or Sussex).

Annulment Timelines and Waiting Periods in Delaware

In Delaware, annulments do not have the statutory waiting periods that divorces do, which require a mandatory six-month separation. However, there are filing deadlines tied to the grounds for annulment that the petitioner uses. For instance, petitions filed on the grounds of incapacity, fraud, duress, and "jest or dare" are expected to be filed within 90 days of learning of the condition. Petitions filed based on underage marriage or prohibited or void marriages also have their respective timing rules. There are also ordinary procedural time frames that govern the service of filed petitions, the opportunity for the other party to respond (a 20-day response window), and scheduling.

Note: Disputes over grounds for annulment, delays in serving the other party, court backlog, and scheduling issues may extend the timeline for an annulment.

Costs and Court Fees for an Annulment in Delaware

Some state-specific costs that someone filing for annulment in Family Court may encounter include the following:

• Court Filing (to open the case): Set as $165 under the Family Court's "Civil Filing – Divorce"(which also applies to annulments) and a mandatory $10 Court Security Assessment.
• Ancillary matters (e.g., requests for the Court to decide on property, fees, etc.) cost $90 per issue and are charged to the party requesting them.
• Service of process: Varies by county, e.g., New Castle $85 (first defendant, same address rules apply), Kent $40 (+$5 for each additional defendant at the same address), Sussex $40 (+$5 for each additional at the same address).
• Publication (only if ordered or allowed): There are no charges when using the Family Court Legal Notices website. According to the Court's fee schedule, newspaper publication costs are $75 (New Castle/News Journal) or $25 (Kent and Sussex/Delaware State News).
• Certified copies of decree: $4.00 certified; $1.00 non-certified.
• Issuance of a subpoena costs $10; standard copy charges apply.

Individuals who cannot pay their fees may apply for a fee waiver using Form 257 (Affidavit in Support of Application to Proceed In Forma Pauperis). If granted, the Court waives filing and notice fees. The waiver does not include transcript and newspaper publication costs.

Note: Parties who wish to represent themselves (pro se) may review the Family Court's Divorce/Annulment page for filing guidance and forms.

After the Annulment: What Happens Next?

In Delaware, an annulment renders a marriage null and void. Under the law, an annulled marriage is regarded as if it never happened. This means that both in an annulled marriage are treated as if they were never married and are eligible to remarry. Children born during a marriage that was subsequently annulled are considered legitimate and have all the legal rights and protections similar to those born to a married couple.