If your spouse is serving time in prison, the good news is that you don’t have to stay married to him if you’d rather not. The bad news is that it might cost you a little more to divorce him, depending on where you live. The fact that he’s an inmate may slow the proceedings down and affect the outcome in subtle ways, but the court will ultimately terminate your marriage.
Your Spouse May Be Legally Incapacitated
If your spouse is incarcerated, this legally places him under a disability in some states, such as Virginia. This means he can’t handle his own divorce – he must have an attorney. The court will appoint a guardian ad litem, familiarly known as a GAL, to represent his interests. The cost for this attorney falls to you. When you file for divorce, consult with a local attorney to find out if this rule applies in your state. Sometimes exceptions exist, depending on what type of crime your spouse has been convicted of. He’d still require a GAL, but you may not have to foot the bill.
Serving the Documents
After you file for divorce, the next step is to serve your spouse with a copy of the paperwork. It’s generally not all that difficult to serve an inmate, but this, too, will probably require an additional step. You can serve the documents according to the rules that exist in your state, usually by having the sheriff or a private process server deliver them. But if your spouse is in prison, the documents must first go to an official there. If you use the sheriff or a professional, he may already know who this official is. Otherwise, you’ll have to contact the prison to find out. After your spouse is served with the initial divorce papers, you must file proof of service with the court, just as you would if he weren’t in jail.
Effect on Proceedings
As your divorce proceedings move along, your spouse’s imprisonment might not have much of an effect. If you live in a state where a GAL has been appointed, the lawyer will take care of filing a response to your divorce petition or complaint and take care of all the legal steps that are necessary thereafter. If your divorce involves any court appearances, your spouse will have to participate either by phone or through his attorney. Generally, after you get over the initial hurdles, your divorce should proceed much like any other, but the terms of your divorce judgment may be affected by the fact that your spouse is in jail.
Effect on Divorce
You must resolve a few major issues when you divorce: division of property and debts, and – if you have children – custody and child support. In states that divide marital property according to the principles of equitable distribution, and most of them do, marital misconduct may or may not influence the judge’s decision regarding property division. If your spouse’s crime caused dissipation of marital assets – for example, he used marital money to buy drugs – it’s possible that you could receive additional property to compensate for this. If he didn't contribute financially to the marriage, this, too, could result in you receiving more than half the property.
You may not be able to collect child support while he’s in prison because some states “reserve” an inmate’s obligation while he’s incarcerated, effectively stalling his obligation to pay until he’s released. He obviously cannot have physical custody of your children while he’s incarcerated, and his criminal record may prevent him from sharing joint custody with you after his release. Whether the court will order visitation while he’s in prison typically comes down to whether the judge believes it's in the best interests of the children to see their parent under such circumstances.
- Divorce Source: How to Divorce Your Spouse if They are Incarcerated
- Sacramento Press: Serving Divorce Papers on an Incarcerated Spouse
- Law Office of George M. Gilmer: Filing for a New York Divorce From Spouse in Prison
- Minnesota Department of Human Services: Child Support – Incarcerated Parents
- Online Sunshine: 2013 Florida Statutes, Section 61.075 - Equitable Distribution of Marital Assets and Liabilities
- Garrett Law Group: How to File for Divorce in Virginia When a Spouse Is in Jail