LEGAL GUIDE
Written by Avvo Staff | Apr 22, 2014

Frequently Asked Questions When Divorcing While a Spouse Is in Prison

Marriages are rarely easy and divorce is often complicated. When the decision to separate comes during the incarceration of a husband or wife (or you simply can’t bear out a spouse’s sentence), there are personal, as well as legal issues to consider. Every situation is unique and each state has its own laws governing divorce while a spouse is in prison.

In addition to the stress you may be experiencing, there are likely questions you will need answers to. The following is a list of frequently asked questions regarding this matter.

See Also: How to Take the Stress Out of Divorce

Can a spouse in prison prevent a divorce?

Although your spouse may be in prison, he or she does have certain rights. In fact, if there’s property or children involved, having a spouse in prison doesn't necessarily simplify the process. While a divorce can be filed as no-fault, or as required by your state’s law, you will need to justify the reason for divorce. With no-fault, neither party is placing the blame on the other for the dissolution of the marriage. Conversely, you can file on the grounds of irreconcilable differences. In some states, a default judgment can be filed if the spouse does not respond in a timely matter. Once the paperwork has been filed (and served), your spouse cannot stop the legal process of divorce. However, he or she can delay matters by being uncooperative.

Is it free to divorce my spouse in prison?

Divorce is never free, even when a spouse is imprisoned, but this should not deter you from filing for divorce. The courts may grant a waiver of some court fees (commonly called a fee waiver) on the basis of financial hardship, if you file a motion to do so. You can also cut costs by representing yourself in court, but this should be done with caution. The divorce laws are complex and having a skilled divorce lawyer can help keep the process on track. You will also need to show proof of your spouse’s incarceration (this document is called a mittmus). When possible, you should always consult an attorney to help you complete any paperwork required by your case. This will ensure accuracy and minimize any errors.

What happens if the spouse refuses to sign the papers?

Having an uncooperative spouse is frustrating, and it can obviously extend the divorce process. For most states, a 30-60 day period is the window of time allotted for which the spouse will have to respond. If your spouse does not respond after that time, you can request to enter a default judgment (depending on your state laws).

Do the crimes matter for divorce while spouse is imprisoned?

Obviously, the more serious the crime, the higher the likelihood that a prison term will be longer. In Maryland, you can file for divorce based on the state’s 12-month separation law, which falls under no-fault. In New Jersey, there’s an 18-month wait, and the imprisonment must be consecutive. Generally, it is enough for the court to know that your spouse is imprisoned. The nature of the crime won’t make the process speedier, or less costly.

When Jail is a Result of Domestic Violence Charges

How is the divorce process different when one of the spouses is in jail?

Though your spouse is incarcerated, technically, it’s the same process. What differs is that your spouse might choose to use a court appointed attorney to represent his or her interests. In Texas, a felony conviction can be grounds for a divorce, but there is usually a 12-month waiting period. That is to say, a spouse that has been in a state or federal prison and has not been pardoned can legally be divorced. What’s important is that you seek legal counsel and have all your paperwork complete. Having an incarcerated spouse doesn't necessarily simplify your case.

Further Reading: Grounds To Terminate Parental Rights

What if one of them contests the divorce?

Divorce comes in two forms: contested and uncontested. The most common type of divorce is uncontested because both parties agree and can usually work out a plan to make the proceedings less tedious. If your spouse contests the divorce, you have a couple of options at your disposal: if he or she agrees with most of the terms, but not all, you can work on coming up with an agreement that works for both of you. If you can’t come to an agreement, it’s possible that the case could go to trial. At trial, the judge can make the final determination as it relates to child custody, property ownership, or other matters.

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