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Would incarceration be considered grounds for divorce?

By Spodek Law Group | July 27, 2023
(Last Updated On: October 13, 2023)

Last Updated on: 13th October 2023, 08:21 pm

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.

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:

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

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