Divorcing a spouse who is currently in jail or prison can be challenging, however, it’s possible. If you need to divorce your spouse because of their actions or because of a lengthy prison sentence, having an experienced family law attorney by your side can make things easier. It helps to have an experienced divorce attorney represent you and guide you through the difficulties associated with having to divorce someone in prison or jail.
Why Divorce an Incarcerated Spouse?
Being married to an incarcerated spouse comes with many challenges, including financial difficulties, estranged familial relationships, and child-rearing struggles.
The emotional and psychological toll of being married to someone in prison can be immeasurable. Lack of intimacy, loneliness, and marital estrangement because of incarceration is often more than many spouses can bear.
Even after your spouse is released from jail or prison, studies show that incarceration has devastating and prolonged effects on marriages.
How to Get a Divorce When Your Spouse Is in Jail or Prison?
If your spouse receives a prison sentence for committing a crime, you can’t file for divorce simply on the grounds of their incarceration. But the length of the sentence may be grounds for divorce. If your spouse’s prison term is two years or longer, you may file for divorce on the grounds of imprisonment.
There are other qualifying factors, as well. If your spouse recently got incarcerated and you’re uncertain about the future of your marriage or simply you want a divorce, contact an experienced divorce attorney as soon as possible.
Uncontested Divorce of an Incarcerated Spouse
The process of divorcing an imprisoned spouse is similar to the ordinary divorce process. If you and your spouse agree on all the major issues on ending your marriage, you can complete an uncontested divorce.
An uncontested divorce is one where both parties agree on all divorce terms. Often, uncontested divorces are expedited and completed quickly than contested divorces, which involve disputes on the divorce terms.
Typically, uncontested divorces require less paperwork and are less costly than contested divorces. If you and your spouse move forward with an uncontested divorce, you’re likely to incur lower attorney fees, as well as fewer court filing fees.
If your incarcerated spouse disagrees with your decision to divorce them or if there are critical disagreements regarding the terms of the divorce, in this case, a contested divorce is necessary.
During a contested divorce, a judge or jury will decide on the disputed issues.
Common areas of disputes, which the court may determine, include asset and property division, child support, child custody, and spousal support. The requirements related to waiting periods and residency are the same within uncontested and contested divorces. But most contested divorces involve more legal procedures, such as filing Temporary Restraining Orders and Discovery, which result in a more complicated and protracted divorce.
However, don’t forget that an incarcerated spouse has a right to be involved in relevant legal proceedings, including divorce. Thus, an incarcerated spouse may request to receive permission to attend divorce hearings. Also, they may want attorney representation during the divorce proceedings.
How to File for Divorce When Your Spouse Is In Jail or Prison?
Filing for a divorce isn’t a single-step process. You must take several steps, especially if your spouse is in jail or prison.
Determine the Rules for Filing for a Divorce If Your Spouse Is Incarcerated
First, contact a clerk in the family court in the county you live in. you can do this either in person or on the phone; they will help you get the correct forms. Today, most counties offer downloadable forms on their websites. Next, determine whether, in your state, the basic documentation you should file differs from the standard one. If it is different, then get a copy. If not, fill the standard form.
Get Proof of Imprisonment
If a judge sent your spouse to prison because of a criminal case, get a copy of the court minutes showing the imposition of that sentence. Speak with the clerk of the criminal court in the county where your spouse was sentenced on how to get a copy of the court minutes that show your spouse was incarcerated. However, you may have to pay a small fee to get this document.
Fill Out the Necessary Forms
In each divorce, the parties must divide their assets, property, and debts. Couples who have children together must also address child custody and child support. So, fill out the necessary forms.
File the Forms Per the Law
This means you must submit completed paperwork to the court. You must include a copy that proves the imprisonment. Also, you must pay a filing fee. Some jurisdictions waive the filing fee, especially if you can’t afford it.
Serve Your Spouse
You must follow certain procedures when serving legal papers. For instance, you can’t simply mail the papers to your spouse in jail. Rather ask the clerk if the service is mandatory, especially given the fact that your spouse is in jail. If it is a requirement, hire the local sheriff’s office to serve the papers on your behalf. This way the service is legal. Remember, if you don’t serve the papers properly; this can delay the proceedings.
Attend the Divorce Hearings
Most states require you to make at least one court appearance before they can complete your divorce hearings. However, this varies depending on your state and situation.
Get a Copy of the Decree
Make sure you get a certified copy of the final decree. This is the legal proof that you’re no longer married to your former spouse.
Ending a marriage is a daunting task. So, when considering your options, you must understand what’s required of you, and the steps you must take to get a legal divorce from your former spouse.
Will I Get Child Support and Custody If I Divorce My Incarcerated Spouse?
An imprisoned spouse can still be ordered to pay child support or spousal support. They will be ordered to use outside resources to pay the amounts due, or the state may take any income they earn while in prison or jail. If the incarcerated spouse owed child support before going to jail or prison, they can petition the court to modify the parenting plan to reflect their limited wages while in jail or prison.
An imprisoned spouse can’t get physical custody of any children, and accordingly, can’t receive any child support payments. The existing parenting plan must be modified if a person is incarcerated to reflect the change in visitation time and child support. Once they’re released from jail or prison, then they can petition the court to change the parenting plan or support arrangements.
You don’t have to go through this alone. If you’re considering divorcing an incarcerated spouse, consult with an experienced family law attorney.
Consult With A Divorce Attorney!
If you’re considering a divorce, whether from an incarcerated spouse or anyone else, contact a divorce lawyer and tell your story. Get specific help based on your situation. Many divorce lawyers consult for free or charge a small fee and will be happy to help you. Professional legal advice is key to achieving the best outcome.