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Would incarceration be considered grounds for divorce?

Would Incarceration Be Considered Grounds for Divorce?

Marriage is supposed to be “until death do us part,” but what happens when one spouse ends up behind bars? Does being in prison give the other partner legal grounds to file for divorce? It’s a complicated situation with no simple answers. This article will explore the issues and options for divorcing an incarcerated spouse.

How Common Is This Situation?

Unfortunately, having an incarcerated husband or wife is more common than you might think. According to the Prison Policy Initiative, over 1.9 million people are incarcerated in prisons and jails across the U.S. Many of them are married. So it’s no surprise that a significant number of spouses on the outside end up considering divorce after their partner is locked up.

Does Incarceration Count as Grounds for Divorce?

In most states, you can’t file for divorce just because your spouse is in prison. Generally, you need to prove the marriage is “irretrievably broken” due to conflict like abuse, adultery or abandonment. However, some states do allow “no fault” divorces where you don’t have to prove fault or wrongdoing by either spouse.

So while incarceration alone may not be legal grounds for divorce, the circumstances leading to imprisonment often are. For example, domestic violence, drug abuse, or other criminal acts can be valid reasons to claim the marriage is over. The prison sentence is just the final straw.

George FernandezGeorge Fernandez
14:16 30 Apr 24
Excellent 10 out of 10, Helped resolve my case. Jeremy explained everything and made everything easy to understand.
21:33 24 Apr 24
If you are looking for a lawyer that listens, is aggressive where needed, and holds his word above all else, Todd is the best pick. I had hired multiple attorneys prior to hiring the Spodek Group for a white collar case. The first thing that stood out to me was the cost, as anyone going through the process and dealing with the system, money was tight at that time - especially after hiring and firing multiple lawyers. The cost was not as high as others which was definitely a plus. Todd's intake process was also unlike other attorneys. He took the time to actually listen. He cared. He was trying to put himself in my shoes while I was explaining the situation to him and he really took the time to understand the whole situation. Other lawyers will give you 15 mins and send you a retainer agreement. Not Todd, I think he spent almost two hours with me as I was explaining everything.Not only was he great during the onboarding process, he was supportive and very informative through the entire plea process and eventually sentencing. After hiring him, I asked if I should hire a prison consultant, he told me to save my money as he would do everything they would. He was right and held up to his word. Later on I would hear from others that went with the prison consultants that they were a waste of money - I am glad I listened to Todd!When it came time for sentencing, two days prior to sentencing, the prosecutor tried increasing my proposed prison time by almost double - apparently a normal move. Todd and his team worked with me non-stop through the weekend prior to sentencing to ensure that I was not given additional prison time. Again, he took the time to listen and came up with a strategy to explain the case with great detail.Unfortunately, I did plead guilty as that was my best option. Todd and his whole team wrote up nearly 300 pages of a summary of what happened and why I should not be given prison time. If I breakdown the amount I spent with Todd versus the amount of work that I saw being done, I am shocked I was not charged four times as much. The other benefit was, a lot of criminal defense lawyers were just a single attorney with a paralegal or two. Todd had a team of people that I dealt with (5-7 people that I interacted with), but he was ALWAYS accessible. It would never take him more than an hour to reply unless he was in court.I was sentenced to prison and I was emotionally distraught. Todd and his team did whatever they could even after sentencing to make sure I was alright. He personally stayed in touch with my family to ensure I was doing alright and offered support to them. Most lawyers would consider the job complete at sentencing, not Todd.After prison, Todd still spent time with me to make sure I was on the right track and avoiding any potential risks in the future. He has also been giving advice on how to navigate probation etc and has not been looking at the clock for billing.Although I wish I had never been arrested in the first place, I am glad I had Todd and his team in my corner. Without them I likely would have had to spend a lot more time in prison than I did.Thank you, Todd, and the entire Spodek Law team, for helping turn what was a nightmare into a manageable situation!
Yelva Saint-PreuxYelva Saint-Preux
19:26 19 Apr 24
I am immensely grateful to the entire team at Spodek Law Group for their unwavering dedication and exceptional expertise throughout my case. From our initial consultation to the final resolution, their professionalism and tireless advocacy made all the difference. Their strategic approach and attention to detail instilled confidence in me every step of the way.Thanks to their hard work and commitment, we achieved a truly favorable outcome that exceeded my expectations. Not only did they navigate the complexities of my case with precision, but they also provided invaluable support and guidance during what was undoubtedly a challenging time. I cannot recommend Spodek Law Group highly enough, especially attorneys Todd Spodek and Claire Banks; they are beacons of excellence in the legal profession.YSP.
Katherine SunKatherine Sun
18:08 18 Apr 24
my lawyer is Alex Zhik. Efficient, patient and professional
Nun yaNun ya
17:48 18 Apr 24
Todd, Ralph and Alex are amazing. Helped my husband get from a double digit number with multiple charges to a single digit, by the time I blink he will be out. They very professional and help with all your needs. They dealt with my anxiety and worry very well and they understand that your family member needs to get home as soon as possible.
Keisha ParrisKeisha Parris
20:45 15 Mar 24
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
Taïko BeautyTaïko Beauty
16:26 15 Mar 24
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence.Thank you team!
K MarK Mar
01:37 25 Jan 24
I recently had Spodek Law Group represent me for a legal matter in NYC and I am thoroughly impressed with their services.Alex Zhik secured the best possible outcome for my case.It was a seamless journey from the initial consultation to the resolution of my legal matter. From the moment I spoke to Todd about my case, his enthusiasm to help was evident, setting a positive tone for the entire experience. The efficiency and professionalism displayed by the team is commendable.A particularly noteworthy aspect of their service is their user-friendly portal to upload your documents/evidence. This not only simplified the process, but showcases their commitment to streamline the client experience.Lastly, in an industry where legal fees can often be a concern, I found their pricing to be very reasonable, making needing legal assistance feel accessible and stress-free.I am grateful for their support and wouldn't hesitate to turn to them again in the future.

Special Challenges of Divorcing an Inmate

Trying to get divorced when your spouse is locked up comes with some unique hurdles:

  • Limited contact and communication with your incarcerated partner
  • Difficulty serving divorce papers to someone in prison
  • The inmate’s restricted ability to participate in court proceedings
  • Complications dividing assets and property

These factors can drag out the divorce process, but there are ways to deal with them.

Serving Divorce Papers

To start divorce proceedings, you need to properly notify (or “serve”) your incarcerated spouse with the initial divorce petition and paperwork. There are a few options for accomplishing this:

  • Send the papers via certified mail to the prison
  • Hire a process server to deliver them in person
  • Ask the warden or other prison official to arrange delivery
  • Get permission for a trusted friend or relative to serve the papers

As long as you have proof the inmate received the divorce petition, you’ve cleared this first hurdle.

Participating in Court Hearings

In most cases, an incarcerated spouse has the right to participate in divorce proceedings from prison, either remotely or in person. But security issues can limit their involvement. Options include:

  • Filing documents and motions by mail
  • Attending hearings via phone or videoconference
  • Requesting a court order to be physically brought to hearings (in shackles)
  • Hiring an attorney to represent them in court

If the inmate doesn’t respond to the divorce petition or participate, the case can still proceed without them. But the judge may be reluctant to issue a default judgment unless you show evidence you tried to include your spouse.

Dividing Assets and Debts

Figuring out the division of money, property and debts as part of the divorce can get complicated if one spouse is incarcerated. Some questions that often come up include:

  • How will child support and spousal support be impacted?
  • Who gets the house or other major assets?
  • What happens to assets seized or forfeited as part of a criminal case?
  • Who is responsible for joint debts incurred before the prison sentence?

These financial loose ends may require creative solutions, such as postponing certain property decisions until after the inmate’s release. Consulting a divorce lawyer is wise to protect your rights.

Alternatives to Divorce

For some spouses, formally ending the marriage while their partner is incarcerated seems overly harsh. If you want to keep the relationship intact, consider these options instead of divorce:

Legal Separation

Also known as a divorce “from bed and board,” a legal separation lets you live apart without formally divorcing. You can get child support, spousal support and divide property, while remaining legally married. It gives you time to evaluate the future of the relationship.

Postpone the Decision

If you are unsure about getting divorced, you can simply wait. In most states, there is no time limit to file for divorce. Take time to think through your choice, and discuss options with your spouse. Proceeding slowly can be wise.

Stand by Your Partner

For some spouses, divorce is not on the table. They choose to support their husband or wife through the prison sentence, and resume life together when release occurs. This requires hard work to sustain the relationship behind bars.

Marriage and relationships can survive incarceration, but it takes commitment from both people. Don’t rush into divorce without considering all angles.

Consult an Attorney

Navigating divorce when a spouse is in prison is tricky. The laws vary by state. It’s wise to meet with a qualified family law attorney to understand your options and protect your rights. They can guide you through the process and represent you in court.

While having an incarcerated partner adds challenges, it is still possible to move forward with divorce or separation if desired. With proper legal advice, you can make the best choice for your situation.

Despite the barriers, many marriages do survive a prison sentence and couples reunite stronger than before. But incarceration can also damage relationships beyond repair. Consider all factors wisely when deciding if divorce is the right path during this difficult situation.


The Prison Policy Initiative

Streets Law

Law for Families

Budget Divorce Center

Dale Bernstein Law

Family Law Attorneys


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