If your spouse commits a crime and gets put in prison, you may not want to stay married any longer. While you can choose to remain married, you can also divorce your imprisoned spouse, though the exact grounds for the divorce may differ between states. Some states specifically list imprisonment as a reason for divorce while others simply allow no-fault divorces.
Before a court can grant your divorce, it must have a reason, or grounds, for the divorce. Grounds can either be fault-based -- meaning one spouse did something wrong to cause the divorce -- or no-fault. Some states recognize only no-fault grounds upon which to base a divorce, so you cannot specifically list imprisonment as the grounds for your divorce. For example, all divorces in Michigan are no-fault on the grounds of "irretrievable breakdown" of the marriage, and the spouse who files for divorce does not have to prove the other spouse did anything wrong in order to get the divorce. North Carolina, on the other hand, only allows divorces for incurable insanity, which is rarely used, and the no-fault grounds of separation for at least a year.
Read More: Which States Are No-Fault Divorce States?
If your state offers the option to file under fault grounds, imprisonment is often on the list of available grounds, but the rules vary between jurisdictions. For example, New York law requires the imprisoned spouse to serve three consecutive years before a court can grant a divorce on this basis. In Massachusetts, divorce is available if your spouse is sentenced to five years or more -- even if he serves no time. Tennessee has no sentence length restrictions, but the conviction must be for a felony or must have made the spouse “infamous."
Your state’s laws may determine whether it is more advantageous to file on fault or no-fault grounds. Since all states recognize some form of no-fault divorce, it may be quicker to file on no-fault grounds rather than wait for your spouse to serve a certain prison term to qualify to file on fault grounds. Even in states where the no-fault basis for a divorce involves a period of separation, the required separation time may not be as long as the necessary prison term. No-fault grounds may also be easier because they require very little proof, but fault grounds require you to prove your spouse was convicted and either sentenced or served the required length of imprisonment.
While your spouse still has legal rights in your divorce proceeding, imprisonment may affect certain aspects of the divorce, including child support. A court can establish child support while your spouse is in prison, but the amount is likely to be a lesser amount than if your spouse was working. After your spouse is released from prison, you may request a modification to increase the support amount based on his post-imprisonment employment.
- The Law Offices of William J. Leininger, PC: Grounds for Divorce in New York
- Hampshire County Probate and Family Court: Grounds for Divorce
- Tennessee Compilation of Selected Laws on Children, Youth and Families, 2011 Edition: 36-4-101
- Rosen Law Firm: What Are the Grounds for Absolute Divorce in North Carolina?
- California Department of Child Support Services: Child Support Information for the Parent in Jail or Prison
- Dishon & Block Divorce Attorneys: What Is a No-fault Divorce?
- Allan W. Ben, PC: Michigan is a No-Fault Divorce State
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