Prisoners in California have the right to get married and they also can file for a divorce.The length of a person's incarceration, generally one to three years, determines if he may file a divorce petition in the state. Once a spouse of an incarcerated person petitions for a divorce, the inmate must receive a copy of the divorce petition, in the event that he wants to dispute the divorce.
Time Frame For Residency
California law requires that a prisoner and his spouse must have lived in the state for at least six months and in the county where the divorce is being filed for at least three months before an incarcerated individual can legally file for a divorce. Someone who has been incarcerated in the same prison or jail for at least three months also can petition for a divorce in that county.
A spouse petitioning for a divorce from her incarcerated husband in California is required to notify him with a summons FL-110 and a copy of the divorce petition. The incarcerated spouse has 30 days to dispute the divorce petition. If there is no dispute, a court will enter a default judgment and the divorce shall be granted to the spouse along with any demands she may have.
Legal Grounds For A Divorce
There are two types of grounds for divorce that California recognizes. Divorce on the grounds of irreconcilable differences in the most commonly used. The other is incurable insanity, which means one spouse is claiming the other spouse is insane when the divorce petition is signed and remains incurably insane. California laws allows the spouse of an incarcerated person to petition for a divorce on grounds of irreconcilable difference. This means the marriage will not work and counseling can not save it.
Attending Divorce Hearings
California generally does not allow a prisoner to be present at a divorce hearing. In cases where it is necessary for a prisoner to be in court for a divorce hearing, the prisoner may be transported by law enforcement agencies to the courtroom. However, a prisoner can request to be present by telephone or videoconference for divorce proceedings.
Custody issues can come into play with couples with children. If a mother is incarcerated at the time that her husband petitions for a divorce, the husband will be awarded custody of the children. If the father is incarcerated, the mother receives custody. Visitation by the children is not mandatory and the spouse has the option to allow her children to visit their incarcerated parent. This does not mean that the incarcerated parent cannot get some type of custody of their child once he is released.