LEGAL GUIDE
Written by Avvo Staff | Apr 30, 2014

Divorce When One Spouse is in Jail

Divorce narratives can fall under many guises. There’s adultery, falling out of love, growing apart, and mental cruelty. In short, the marriage bonds become irreparable.

One of the many reasons for divorce is the incarceration of a spouse. A spouse who commits a crime that merits years or decades of prison time can create emotional and financial strains. Although you may have vowed “through good times and bad times,” the truth is, no one has to be a prisoner to marriage.

The process of divorce while a spouse is in jail or prison can be as simple as agreeing to separate and signing the necessary paperwork. On the other hand, it can be a long, drawn-out process with a myriad of court dates and steep legal fees. Good communication generally creates the best possible scenario, but given the complexities of human nature, a simple outcome is not always realistic.

Here’s what you need to know if you’re considering divorcing a spouse in jail.

Filing for Divorce

As with any divorce, the process begins with the petition for divorce. This form is filled out and delivered to the “respondent.” If your spouse is incarcerated, you will need to speak with the court clerk to determine whether you’ll need any additional paperwork to serve an inmate. Typically, the required documents are a copy of the mittmus (the legal document describing the spouse’s incarceration) and your spouse’s inmate number. This requirement varies from state to state, so be sure to consult your state’s laws or an attorney.

Grounds for Divorce

In the early days of divorce in the U.S., it was necessary to give a justified reason and detailed explanation as to why a marriage was broken. Today, many states have streamlined divorce. In most states, the grounds for divorce are very simple: It can fall under adultery, mental illness, abandonment, sexual abandonment, cruelty or even imprisonment. You can enter no-fault, where both parties accept responsibility for the decline of the marriage. More often, though, due to current no-fault laws, the grounds for divorce can be as simple as “irreconcilable differences.” Anyone seeking a divorce can move in that direction, whatever the grounds. Criminal conviction is often enough, especially if it’s more than a year. Consult an attorney to check your state’s laws in this regard.

Having Divorce Papers Served

With so many stories about spouses avoiding divorce papers, both anecdotal and on the news, serving your spouse might seem impossible. Actually, the process isn't very difficult at all. Incarcerated spouses are easily served, since their location at any time is a known factor. Once your papers are filed, you can have them served either by a sheriff or a private process server. Then you’ll have to wait. Most states give a spouse between 30-60 days to respond. Failure to respond will not mean that your divorce won’t happen. Your spouse may actually forfeit some rights by not responding to the divorce petition. In California, if the spouse doesn't respond, after six months, the judge can grant your divorce.

An Attorney for the Spouse

Just because a spouse is incarcerated doesn't mean that they can’t be legally represented in a divorce proceeding. But the responsibility isn't yours. In fact, there are various resources that your spouse can use, such the prison’s legal society, or simply hiring an attorney. The attorney can work with your spouse to ensure that his rights are protected as well. An incarceration isn't a loss of all rights.

Length of the Divorce Process

Divorce can occur over a few months, or stretch out to over a year for some, particularly if the divorce is contested by your spouse. This is where a skilled attorney can help. Informational and DIY (do it yourself) divorce kits have become more widespread, and it’s true they might save you money at the beginning. However, if your divorce becomes more complex, the legal fees could mount. Also, missing paperwork or inaccuracies can prolong a divorce case. If you have children together that can also complicate the process. Only when the judge has received all the necessary information, will he make a determination to grant the dissolution of marriage.

Consequently, it’s important to understand that each state handles divorce of an incarcerated spouse differently. How divorce is handled in Maryland is uniquely different from the way it’s handled in Arkansas and so forth. Therefore, be sure to arm yourself with the law.

For most individuals, divorce is a stressful time, so it makes sense to seek help. If you’re considering divorcing an incarcerated spouse, you should consult with a divorce or family law attorney to serve your interests.

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