CHAPTER 365

FORMERLY

HOUSE BILL NO. 528

AS AMENDED BY

HOUSE AMENDMENT NO. 1

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. Amend §1503, Chapter 15, Title 13, Delaware Code, by striking paragraph (7) in its entirety and by inserting in lieu thereof the following:

"(7) 'Separation' means living separate and apart for 6 or more months immediately preceding the ruling upon the petition for a decree of divorce, except that no period of separation is required with respect to a marriage characterized under §1505 (b) (2) of this title; and separation may commence and/or continue while the parties reside under the same roof, provided during such period, the parties occupy separate bedrooms and do not have sexual relations with each other, except as §1505 (e) of this chapter may apply."

Section 2. Amend §1503, Chapter 15, Title 13, Delaware Code, by striking from paragraph (8),in lines 4 and 5, the words, "or by participation by respondent in judicial proceedings", and inserting in lieu thereof the words "or by proof of institution by respondent of separate judicial proceedings".

Section 3. Amend §1505, Chapter 15, Title 13, Delaware Code, by striking subsection (a) in its entirety and by inserting in lieu thereof the following:

"(a) The Court shall enter a decree of divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable."

Section 4. Amend 41505 (b), Chapter 15, Title 13, Delaware Code, by striking the phrase "where reconciliation is improbable" as the same appears in the last line of said subsection and by changing the comma "," after the word "incompatibility" to a period".".

Section 5. Amend 31505 (e), Chapter 15, Title 13, Delaware Code, by striking subsection (e) in its entirety and by adding a new subsection (e) to read as follows:

"(e) Bona fide efforts to achieve reconciliation prior to divorce, even those that include, temporarily, sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom or had sexual relations with each other within the 30 day period immediately preceding the day the Court hears the petition for divorce."

Section 6. Amend §1506, Chapter 16, Title 13, Delaware Code by adding a new subsection to be designated (e) and to read as follows:

"(e) 'Separation" as defined in §1503 (7) of this title is inapplicable to annulment proceedings; and a petition may be filed whenever a circumstance exists as defined by, and within the time limit specified in, this section."

Section 7. Amend §1507, Chapter 15, Title 13, Delaware Code, by striking subsection (c) in its entirety and by adding four new subsections to be designated (c), (d), (e) and (f) and to read as follows:

"(c) The petition shall be filed either in the county wherein petitioner resides or the county wherein respondent resides.

(d) The petition shall be filed with the Clerk of the Court, along with such deposit to cover costs as the Court may fix, and a praecipe instructing the Clerk how service is to be made or jurisdiction otherwise sought or acquired over respondent.

(e) A petition for divorce may be filed at any time following the separation of the parties if the requirements of §1504 (a) have been satisfied although no ruling shall be made to determine whether to grant a divorce until after the parties have been separated for 6 months; provided, however, that relief under §1509 shall be available to the parties during the interim.

(f) The relief prayed for under subsection (b) (11) of this section may include, where appropriate under the facts and law, in addition to a prayer for a decree of divorce or annulment, prayers for other relief that may be available under this title, including, without limitation,prayers for interim relief (§1509), alimony (§1512), property disposition (§1513), resumption of prior name (§1514), costs and attorneys' fees (§1515), support for a child (subchapter

I, Chapter 5 of this title), and custody and/or child visitation (subchapter II, Chapter 7 of this title)."

Section 8. Amend §1509 (a), Chapter 15, Title 13, Delaware Code, by adding thereto two new paragraphs to be designated paragraphs (7) and (8) and to read as follows:

"(7) For support of a child under Chapter 5 of this title;

(8) For custody and/or visitation of a child under Chapter 7 of this title."

Section 9. Amend §1509, Chapter 15, Title 13, Delaware Code, by adding thereto a new subsection to be designated subsection (c) and to read as follows:

"(c) Where appropriate under the facts and law, relief afforded a party under subparagraphs (1), (3), (4) and/or (5) of subsection (a) of this section may be continued and/or included in the relief granted under §1518 (b) of this title."

Section 10. Amend §1511, Chapter 15, Title 13, Delaware Code, by striking subsection (c) in its entirety, redesignating subsection (d) as subsection (c) and subsection (e) as subsection (d), and by inserting in new subsection (c) a period"." after the word "counterclaim" as the same appears at the beginning of the third line, and then striking all the words following the word "counterclaim".

Section 11. Amend §1512 (b), Chapter 15, Title 13, Delaware Code, by adding a new paragraph to be designated paragraph (7) and to read as follows:

"(7) Tax consequences."

Section 12. Amend §1513 (a), Chapter 15, title 13, Delaware Code, by adding a new paragraph (11) and to read as follows:

"(11) Tax consequences."

Section 13. Amend §1513, Chapter 15, Title 13, Delaware Code, by adding a new subsection to be designated subsection (f) and to read as follows:

"(f) The Court may order a party to execute and deliver any deed, document or other paper necessary to effectuate an order entered under this Chapter, and if the party so ordered fails to do what he has been ordered to o the Court, in addition to any penalty or sanction it may decide to impose

upon that party for such disobedience, may direct the Clerk of the Court to do what the part was ordered to do, and such performance by the Clerk shall be as effective as the preformance of the party would have been."

Section 14. Amend §1516, Chapter 15, Title 13, Delaware Code, by striking said section in its entirety and by substituting in lieu thereof the following:

§1516. Hearings; use of masters, impoundment, assignment of counsel

'(a) All hearings and trials shall be private, but for reasons appearing sufficient to the Court any hearing or trial may be opened to any person who has a direct and legitimate interest in the particular case, or a legitimate educational or research interest in the work of the Court.

(b) A judge, sitting without a jury, shall conduct all hearings and trials where there is a contest; but, pursuant to Court rule, hearings in uncontested proceedings may be conducted by a master, sitting without a jury, in accordance with §913 of Title 10.

(c) Whenever it seems appropriate, in the interest of justice, the Court may designate a disinterested attorney to defend, or otherwise participate in, a proceeding before the Court, and a fee for such attorney shall be taxed as part of the costs.

(d) No record or evidence in any case shall be impounded or access thereto refused."'

Section 15. Amend §1517, Chapter 15, Title 13, Delaware Code, by striking subsection (a) in its entirety and by adding a new subsection (a) to read as follows:

"(a) Whenever the petition for divorce or annulment is not contested by respondent, the allegations thereof are presumed to be accurate and true, and the Court shall rule upon the petition after a hearing at which only petitioner need testify; but if petitioner's testimony fails to support the petition in any essential respect, the Court may deny the petition or require corroborating testimony or other evidence before ruling thereon."

Section 16. Amend §1517, Chapter 15, Title 13, Delaware Code, by striking the first 3 lines of subsection (b) and paragraph (1) of subsection (b), and by substituting in lieu thereof the following:

"(b) In contested cases, after a hearing the Court shall:

1. Rule upon the petition; or"

Section 17. Amend §1517, Chapter 15, Title 13, Delaware Code, by redesignating subsection (c) as subsection (d), and by adding a new subsection (c) to read as follows:

"(c) Before entering a decree the Court shall review the record to determine that:

(1) The averments of the petition satisfy §41504 (a), 1505 or 1506, and 1507 of this chapter;

(2) Jurisidction has been acquired over respondent under §1508 of this chapter;

(3) In uncontested cases, whether the time for respondent to file a responsive pleading has expired;

(4) The parties to a divorce proceeding have continued to be separated since the commencement of this action, except as 41805 (e) of this chapter may apply;

(5) A certified copy of the parties' marriage record has been filed; and

(6) The affidavit of non-military service, wherever required by federal statute, has been filed."

Section 18. Amend §1518, Chapter 15, Title 13, Delaware Code, by striking subsection (a) in its entirety and by substituting in lieu thereof a new subsection (a) to read as follows:

"(a) A decree granting or denying a petition or 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."

Section 19. Amend §1518, Chapter 15, Title 13, Delaware Code, by striking subsection (b) in its entirety and by Lnserting in lieu thereof a new subsection (b) to read as follows:

"(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."

Section 20. Amend §1518, Chapter 15, Title 13, Delaware Code, by striking subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

"(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."

Section 21. Amend §1518, Chapter 15, Title 13, Delaware Code, byredesignating subsections (d), (e) and (f) as subsections (e), (f) and (g) and by adding a new subsection to be designated (d) and to read as follows:

"(a) 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 this disposition of an appeal, or at such other time or times as the Court may deem appropriate."

Section 22. Amend §1519, Chapter 15, Title 13, Delaware Code, by striking subsection (a) in its entirety and by inserting in lieu thereof a new subsection (a) to read as follows:

"(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 this title, or otherwise;

(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;

(1) Alimony or any other relief awarded, only upon showing of real and substantial change of circumstances."

Section 23. Amend Chapter 15, Title 13, Delaware Code, by adding a new section thereto to be known as §1523 and to read as follows:

"§1523. Time for Appeal

"No appeal from an interim or final decree, judgment or order entered pursuant to Chapter 15 of this title shall be received or entertained unless the praecipe, notice of appeal or other document or documents required for the appeal is or are duly filed with the proper appellate court within 30 days after the date of the same."

Approved June 27, 1978.