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How can I get divorced if my incarcerated spouse won't sign?

Atlanta, GA |

I have been married for 7 months and would like to file for divorce. My spouse is incarcerated and has been for the past few years. I mailed him the papers after I signed them and he refuses to sign. We have no kids, property or debt. Can I still file without the signed settlement agreement?

He is incarcerated in Macon (Bibb County) and I live in Gwinnett County.

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Attorney answers 4


If your spouse is incarcerated in Bibb County, you will need to file for divorce in Bibb County unless he will consent to the case being heard in Gwinnett County. As the other attorneys mentioned, you will need to have him served since he won't sign the papers you sent him. However, service should not be an issue since you know where he can be located at all times.

Perhaps he will reconsider the settlement agreement you sent him once you have filed and he has been served. Oftentimes, a party will resist a divorce until they realize that their spouse is serious and is moving forward with the case.

If your case is contested, you should retain a family lawyer to represent you. You may contact our office at 404-588-3000 if you would like to learn more about our services.

Shelley Senterfitt

Glen Edward Ashman

Glen Edward Ashman


The issue of where to serve when someone is in jail is not a slam-dunk "serve in Bibb County." Since people are in jail involuntarily there also is an argument that his legal residence may be where he was before he was in jail. This is a factual question that should be decided by counsel. As you note, with his signature (which sounds unlikely here, he could waive venue).


Yes, you can get divorced without a signed settlement agreement. Since you do not know how to do that yourself, you should retain a Family Law Attorney to assist you. The only question is where to file, without a waiver of jurisdiction and venue. Where is he incarcerated? In what county do you live?

I am exclusively a family law attorney, practicing primarily in the metro Atlanta, Georgia trial courts. However, I handle appeals from anywhere in Georgia.



He is incarcerated in Macon (Bibb County) and I live in Gwinnett County.

Anthony M. Zezima

Anthony M. Zezima


You should retain an attorney in Bibb County to file the divorce. The Sheriff can serve him in jail. You should only have to appear in court one time.


You absolutely can file for divorce without a signed settlement agreement. It just means that your case is not a "consent divorce", and there may have to be a hearing on any terms that he disputes. It also means that you will have to have him served (in jail) with a copy of the divorce documents.

Good luck.

~ Kem Eyo

The above answer is a general explanation of legal rights and procedures. It does not constitute legal advice. Nor does it establish an attorney-client relationship between the individual posting the question and the attorney providing the answer.


Since he won't sign, you have a contested divorce. He will have to be served. There may or may not be a hearing depending on what he does or does not do.

My office does handle such matters in your county (Gwinnett).

Note that filing pro se is often problematic, and you CANNOT use papers that contain a settlement agreement if there is no agreement.

Feel free to call me at 404-768-3509 with details.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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