Del. Code 13, § 1509 : Domestic Relations — Divorce And Annulment — Preliminary injunction; interim orders pending final hearing

Current through 2016 Legislative Session, Act 399

(a) Upon the filing of a petition for divorce or annulment, a preliminary injunction shall be issued against both parties to the action, enjoining them from:

(1) Transferring, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life, and requiring the parties to notify the other of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures after the preliminary injunction becomes effective; provided, however, that:

a. Subject to the provisions of paragraph (a)(1) of this section, this section shall not preclude a party from taking any action which will affect the disposition of property as a result of such party's death. Such action shall be effective upon written notice (hereinafter the "Notice") to the other party to the divorce or annulment proceeding.

b. If a party dies before entry of a final decree of divorce or annulment, any action affecting the disposition of property as a result of the party's death, which was taken by the party after a preliminary injunction under this section was issued, shall be voidable, to the extent deemed appropriate, in the discretion of a court of competent jurisdiction, unless the parties have otherwise agreed in writing.

c. If any party to a divorce or annulment proceeding dies between the time of entry of the final decree of divorce or annulment and the final resolution of all pending ancillary issues, then:

1. In the case of "marital property," as that term is defined in § 1513(b) of this title, there shall be a rebuttable presumption that the interests of a former spouse in such property shall be superior to the interests of any third-party claimant, payee or beneficiary in such property; and

2. In the case of property that is not "marital property," as that term is defined in § 1513(b) of this title, there shall be a rebuttable presumption that the interests of any third-party claimant, payee or beneficiary in such property shall be superior to the interests of the former spouse in such property.

d. For purposes of this subsection:

1. The Notice shall include a description of all property that will be affected in the event of the party's death, including specific contact information for the individuals or entities who will administer any property that will be affected, including, but not limited to, any trustees, individuals, or other entities administering insurance, accounts or property interests governed by transfer on death provisions, annuities, individual retirement accounts, stock options and qualified or nonqualified employee benefit plans;

2. The Notice shall include language similar to the following: "This Notice is being given to you as required under subsection (a)(1) of Section 1509 of Title 13 of the Delaware Code"; and

3. The Notice shall be delivered to the other party in any manner, including, but not limited to, certified or registered mail, to the last known address of the other party or the other party's attorney in the divorce or annulment proceeding. Said notice shall be effective on the first to occur of the date of delivery or, in the case of delivery by certified or registered mail, the date of the first attempted delivery;

e. Notice shall be required under this subsection for the purpose of allowing the party receiving the Notice an opportunity to:

1. Protect that party's rights under paragraphs (a)(1)a. and c. of this section in the event of the death of the other party to the divorce or annulment proceeding.

2. Take action to dispose of property under such party's control as a result of his or her death as authorized under this section.

(2) Molesting or disturbing the peace of the other party;

(3) Removing any natural or adopted child of the parties then residing in Delaware from the jurisdiction of this Court without the prior written consent of the parties or the permission of the Court;

(4) Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties' minor children.

The preliminary injunction shall be effective against the petitioner upon the filing of the petition for divorce or annulment. The preliminary injunction shall be effective against the respondent upon the first to occur of the following: service of a copy of the petition; the entry of appearance by the respondent or an attorney for the respondent; the filing of a responsive pleading in the action by the respondent or an attorney for the respondent; or any other written acknowledgment of the filing of the petition for divorce or annulment by the respondent or the respondent's attorney.

(b) Petitioner in the petition for divorce or annulment, or by motion filed simultaneously with the petition, or either party by motion filed after the filing of the petition, may move for 1 or more of the following interim orders:

(1) For temporary alimony for himself or herself;

(2) Restraining a party from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business, for the necessities of life, or as authorized under paragraph (a)(1) of this section and, if so restrained, requiring that party to notify the moving party of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures made after the order is issued;

(3) Enjoining a party from molesting or disturbing the peace of the other party;

(4) Excluding a party from the family home or from the home of the other party even though such party has a legal or equitable interest in the same, upon a showing that physical or emotional harm might otherwise result;

(5) Requiring a party to make available to his or her spouse designated personal property and/or fixtures, even though titled in such party's name alone or jointly with someone else, upon such terms and conditions as the Court may impose;

(6) Requiring 1 party to pay such sum to the other party as deemed necessary to defray the other party's expenses in conducting the proceedings;

(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.

(c) A motion shall be accompanied by an affidavit setting forth the factual basis for the motion and any amounts of money requested. The Court may issue any of the above orders solely or collectively without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury would result to the moving party if an order were not issued until the time for responding has elapsed.

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

Del. C. § 1509

Code 1915, § 3015; Code 1935, § 3508; 13 Del. C. 1953, § 1530; 59 Del. Laws, c. 350, § 1; 61 Del. Laws, c. 365, §§ 8, 9; 63 Del. Laws, c. 74, §1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 426, §§ 1 - 3.;