Default Divorce in Delaware

If your spouse is served with divorce papers and doesn't file an Answer (Form 448) within 20 days, your case moves to the default path. A default divorce is not automatic — the court still reviews your petition and acts as a gatekeeper — but it removes the contested elements and lets you finalize without your spouse's participation.

What "Default" Means in Delaware Family Court

Default simply means the respondent (your spouse) did not file a response within the statutory 20-day window after being served. It does not mean the divorce is granted immediately. It means:

• Your spouse has waived the right to contest the grounds, separation date, or any relief you requested
• The court treats your petition's factual statements as uncontested
• The case proceeds toward finalization without needing your spouse's agreement or attendance

The Default Path Step by Step

1. Confirm Service Was Completed

Before you can proceed on default, the court needs proof that your spouse was properly served. This comes from the sheriff's return of service, the special process server's Affidavit of Service (filed within 3 days), or your spouse's signed Form 406 (Affidavit of Appearance).

2. Wait 20 Days

The clock starts from the date of service, not from your filing date. There's no way to shorten this window.

3. Receive the Notice of Trial Readiness

After the 20-day window passes and other prerequisites are met (the 6-month separation period, parent education if children are involved), the court issues a Notice of Trial Readiness to both parties.

4. Choose Your Finalization Method

You have 20 days from the Notice of Trial Readiness to file one of:

On the papers: File Form 446 (Request to Proceed Without a Hearing) and notarized Form 447. Mail copies to your spouse at their last known address. A commissioner reviews the filings and mails the Decree of Divorce.

Hearing: Attend a short uncontested hearing. You must bring Form 405 (Affidavit of Non-Military Service) certifying that your non-responding spouse is not an active-duty service member. Military personnel have additional protections under the Servicemembers Civil Relief Act, and the court will not enter a default against them without confirming their status.

What the Court Will and Won't Grant in a Default

A default doesn't mean you get everything you asked for automatically. The court acts as an equity gatekeeper:

The court will grant:

• The divorce itself (dissolution of the marriage)
• Relief that was explicitly requested in your original petition (Form 442) — property division, alimony, custody arrangements you specified

The court will not grant:

• Assets or relief you didn't request in the petition — a judge won't award you the house if you didn't ask for it
• Custody arrangements that don't serve the children's best interests — even in a default, the court independently reviews custody and support to protect the children

This is why getting the initial petition right matters. Anything you want the court to consider must be spelled out in your filing.

When a Default Can Be Set Aside

Your spouse can ask the court to set aside (vacate) the default if they can show:

• They never received the papers (improper service)
• They had a legitimate reason for not responding (military deployment, serious illness, incarceration)
• They have a meritorious defense to the divorce or the terms requested

Setting aside a default is not guaranteed, and the respondent bears the burden of showing why the court should allow late participation. But it's a real possibility, especially when service was by publication or the respondent had no actual knowledge of the proceedings.

Default vs. Uncontested

These are often confused but they're different:

Navigating a Default Divorce

The Delaware Divorce Filing Process Guide walks you through the default path with specific attention to what must be included in your initial petition, how to document service for the court record, and the exact forms and deadlines for finalization — plus a risk assessment checklist that flags when a default case may face challenges.

See more Delaware guides →