CHAPTER 349

FORMERLY SENATE

BILL NO. 372 AS AMENDED

BY SENATE AMENDMENT NO. 2

AND HOUSE AMENDMENT NO. 3

AN ACT TO AMEND CHAPTER 15, TITLE 13, DELAWARE

CODE, RELATING TO DIVORCE AND ANNULMENT.

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

Section 1. Section 1501, Title 13, Delaware Code, is repealed and a new Section 1501 is substituted therefor as follows:

§ 1501. Jurisdiction; residence; procedure

(a) The Superior Court of this State has jurisdiction of all actions for divorce and annulment of marriage where either plaintiff or defendant has been a bona fide resident of this State for at least 1 year next preceding the commencement of the action.

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

Section 2. Section 1502, Title 13, Delaware Code, is repealed and a new Section 1502 is substituted therefor as follows:

§ 1502. Complaint for divorce or annulment

(a) The complaint shall be filed with the Prothonotary of the Superior Court in the county where the plaintiff resides or in the county where the defendant resides.

(b) The complaint shall be verified by the plaintiff and shall state —

(1) Name and place of residence of plaintiff;

(2) Name and place of residence or last known address of defendant;

(3) Place where it is most likely that mail will be received by defendant, or that no such place can be ascertained with reasonable diligence;

(4) If defendant is a non-resident of Delaware whether it is likely that jurisdiction can be acquired over his person other than by publication;

(5) If defendant 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 counsular representative (preferably the nearest) of such foreign country in the United States;

(6) Period during which plaintiff, defendant or both have resided in this State;

(7) The date and place of marriage, that the parties are still married and the date and place of separation if the parties are living apart;

(0) The grounds of the divorce or annulment;

(1) Whether plaintiff has ever before brought an action for divorce or annulment against defendant in any court, and, so far as plaintiff knows, whether such an action has ever been brought by defendant against plaintiff, stating in the event of any such action, the place and court in which the action was instituted, the grounds of the action, who instituted the action and the result thereof;

(2) Whether the action has been brought out of levity or by collusion;

(3) Any other relevant facts;

(4) Relief prayed for.

Section 3. Section 1503, Title 13, Delaware Code, is repealed and a new Section 1503 is substituted therefor as follows:

§ 1503. Issuance, service and return of summons and alias summons

(a) After the filing of the complaint, a summons shall issue and jurisdiction shall be acquired over defendant by personal service, by appearance by attorney, or upon proof of substituted service by publication as prescribed by this title.

(b) When the complaint avers that defendant is a resident of this State, the summons shall be delivered to the sheriff of that County where it appears most likely that service can be effected on defendant. In every case where a summons is delivered to a sheriff in a county other than that in which suit is instituted, a duplicate summons shall also be delivered to the sheriff in the county in which the suit is instituted. If defendant is not served personally or does not appear by attorney, then an alias summons shall be delivered to the sheriff or sheriffs who received the original or duplicate summons for publication as prescribed by this title.

() Where the complaint avers that plaintiff is a resident of this State, that defendant is a non-resident of this State and that it is unlikely that jurisdiction can be acquired over defendant other than by publication, the summons shall be delivered to the sheriff of the county where suit is instituted for publication as prescribed by this title.

Section 4. Section 1504, Title 13, Delaware Code, is repealed and a new Section 1504 is substituted therefor as follows:

§ 1504. Answer; counterclaim; prayer for alimony; prayer for change of name; no default judgement; reply

(a) Defendant may file a verified answer, move or otherwise plead in response to the complaint, and may counterclaim for divorce or annulment against plaintiff.

(b) Defendant may seek an award of alimony from plaintiff pursuant to statute and if a woman, resumption of former name as provided in Section 1536 of this title.

(c) Defendant's failure to answer the complaint shall not entitle plaintiff to a default judgement.

(d) Plaintiff may reply, move or otherwise plead in response to a counterclaim for divorce or annulment.

Section 5. Section 1505, Title 13, Delaware Code, is repealed and a new Section 1505 is substituted therefor as follows:

§ 1505. Hearings and trials

(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 trail may be opened to the public.

(b) No decree of annulment or divorce shall be granted in the absence of affirmative proof aside from any admissions by defendant.

Section 6. Section 1506, Title 13, Delaware Code, is repealed and a new Section 1506 is substituted therefor as follows:

§ 1506. Impounding record or evidence

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

Section 7. Section 1507, Title 13, Delaware Code, is repealed and a new Section 1507 is substituted therefor as follows:

§ 1507. Assignment of attorney

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.

Section 8. Section 1508, Title 13, Delaware Code, is repealed and a new Section 1508 is substituted therefor as follows:

§ 1508. Appearance by relative

A relative by blood or marriage of an absent or uncontesting defendant, may, by attorney, appear for the defendant and plead to the complaint.

Section 9. Section 1509, Title 13, Delaware Code, is repealed and a new Section 1509 is substituted therefor as follows:

§ 1509. Legitimacy of children

(a) In an action brought by the wife, the legitimacy of any child born or begotten before the commencement of the action shall not be affected.

(b) In an action brought by the husband on grounds of adultery, the legitimacy of any child born or begotten before the commission of the offense charged shall not be affected; but the legitimacy of any other child of the wife may be determined as one of the issues of the action. All children begotten before the commencement of the action shall be presumed to be legitimate.

Section 10. Section 1526, Title 13, Delaware Code, is redesignated Section 1512 and shall read as follows:

§ 1512. Service by publication

(a) If the complaint avers that plaintiff is a resident of this State, that defendant is a non-resident of this State and that it is unlikely that jurisdiction can be acquired over defendant other than by publication, then the sheriff, upon receipt of the summons, shall cause an abbreviated form thereof as prescribed by subsection (e) of this section, to be published for 3 weeks in a newspaper of general circulation in the county to give defendant notice of the action.

(b) If the complaint avers that defendant is a resident of this State and it shall appear that the summons has been returned "non est inventus" and that the defendant has not appeared in the action by attorney, then the sheriff, upon receipt of the alias summons, shall cause an abbreviated form thereof as prescribed by subsection (e) of this section, to be published for 3 weeks in a

newspaper of general circulation in the county to give defendant notice of the action.

(c) The requirement of publication for 3 weeks may be complied with by 3 publications, 1 during each of 3 successive calendar weeks, provided that the last publication shall not be less than 14 days after the first.

(d) Where service is to be made upon defendant by publication, the Prothonotary, not later than 5 days after the issuance of the summons or alias summons, shall forward to the defendant, at his last known address (and to the Consular office, if any, specified in the petition), by certified or registered mail with return receipt requested, a copy of the petition, and a notice in the form prescribed by subsection (e) of this section. The return receipt, when and if returned, or the envelope, if returned unclaimed, shall be filed with the papers in the cause, and the Prothonotary shall make appropriate entries upon the record showing compliance herewith. The expense of mailing shall be taxed as part of the costs. 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 ACTION

TO: (John R. Doe), Defendant

FROM: (Richard A. Roe), Prothonotary

(Mary C. Doe), Plaintiff, has sued you for divorce 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 an answer to the complaint on plaintiff's attorney (John C. Doe, 400 Delaware Avenue, Wilmington, Delaware) within 20 days after the last day for publication of this notice as required by statute, the action will be tried without further notice at the county Court House in (Wilmington).

() Personal service or appearance for defendant by attorney prior to the return day of the original or alias summons shall give the court jurisdiction over defendant. Otherwise, the Court shall have jurisdiction over defendant only after publication as herein provided.

(g) The court on defendant's motion or on its own motion shall inquire into the averments of the complaint to determine whether the facts support a finding that jurisdiction has been acquired over defendant in accordance with this title.

Section 11. Section 1534, Title 13, Delaware Code, is amended to read as follows:

§ 1534. Final and absolute decree

A decree nisi shall become absolute after the expiration of thirty days from the entry thereof, unless appealed from or proceedings for review are pending, or the court, before the expiration of said period for sufficient cause, upon its own motion, or upon the application of any person, whether interested or not, otherwise orders. At the expiration of thirty days such final and absolute decree shall be entered upon application to the court by the plaintiff, unless prior to that time cause is shown to the contrary.

Section 12. Section 1536, Title 13, Delaware Code, is amended to read as follows:

§ 1536. Resumption of maiden or former name

The Court, upon granting a divorce from the bonds of matrimony, may allow a female plaintiff or defendant to resume her maiden name or the name of a former deceased husband if such relief is prayed for in the complaint, answer or by motion supported by affidavit, and it appears that the application is justified by the testimony or affidavit.

Section 13. A new section to be known as Section 1538 is added to Title 13, Delaware Code, reading as follows:

§ 1538. Conduct of proceedings by minors over age 19

A plaintiff or a defendant under age 21 but over age 19 may prosecute all proceedings under this chapter as do litigants over age 21 without the intervention of a guardian and litem or next friend.

Section 15. Section 1521, Title 13, Delaware Code, is repealed and a new section 1521 is substituted therefor to read as follows:

§ 1521. Divorce from bonds of matrimony

Divorce shall be granted only from the bonds of matrimony, or divorce a vinculo matrimonii.

Section 16. This Act shall become effective 30 days after the day on which it is signed into law by the Governor. 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 17. If any provision of this Act or the application thereof to any person or circumstance 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 February 5, 1972.