LEGAL GUIDE
Written by attorney Anneshia Miller Grant | Oct 18, 2013

Getting a Divorce in Virginia When a Spouse is Incarcerated

A felony conviction and a lengthy jail sentence can be devastating to both the person convicted and that person's spouse. When considering a divorce in Virginia due to an incarceration, there are several things you should know.

Requirements for a divorce in Virginia

In order to get a divorce in Virginia, you must first meet Virginia’s residency requirements. One spouse must be an actual resident and domiciliary of the state for at least six months prior to the commencement of divorce proceedings. Given the large presence of servicemen in Virginia, the law presumes that the members of the armed services meet this requirement if stationed in the Commonwealth for at least six months. Once one party meets this requirement, the rest of the divorce process will depend on the grounds on which a party is seeking a divorce.

Incarceration as grounds for divorce

Normally, Virginia mandates a year-long waiting period prior to granting a divorce. Incarceration, however, is an exception to the waiting period. Under the Virginia Code, one can seek an immediate divorce if the plaintiff – the person seeking the divorce – can establish the following requirements:

  1. Either of the parties to the marriage has been convicted of a felony;
  2. This party was sentenced to confinement for more than one year, and;
  3. Cohabitation has not been resumed after knowledge of such confinement.

The grounds for the divorce – in this case the felony conviction – must have occurred after the parties were married. Likewise, the felon must actually be incarcerated for some period of time for the crime committed. If the felon was convicted, but immediately given probation instead of jail time, neither spouse can use incarceration as grounds for a divorce.

A divorce when one spouse is incarcerated at the time of the divorce requires an additional step. A court will not grant a divorce until it appoints an attorney for the incarcerated spouse. Known as a guardian ad litem, this attorney represents the prisoner’s interest in the divorce. Normally the spouse seeking the divorce will be required to pay for the guardian ad litem; however, this requirement will be waived if the crime involved physical injury, sexual assault, or sexual abuse against the spouse, child, or stepchild.

Many assume that spouses of inmates initiate divorce proceedings, but this is not always the case. Some inmates want a clean break during their incarceration or a fresh start upon release. If you are incarcerated and want a divorce, begin by speaking with your spouse. Because of your limited access to information and the outside world, an uncontested divorce–one in which you both agree to the divorce and its terms – will be much more simple than a contested divorce. Regardless of whether you and your spouse agree to the divorce, it is important to consult with an attorney.

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