What Is the Law on Divorce When a Spouse Is Incarcerated in Illinois?

By John Cromwell

When a person goes to jail, his spouse may want a divorce for a variety of reasons. Whatever the reason may be, the fact that one of the divorcing spouses is incarcerated can make the legal process difficult. The obvious restrictions on the incarcerated spouse’s movements and earning potential can complicate an already complex process. To address this situation, Illinois has drafted its divorce laws so that an incarcerated person can still get a divorce, despite the obvious hurdles.

Residency and Grounds

While there is no residency requirement to file a petition for divorce, one of the spouses must have lived in Illinois for at least 90 days before the divorce order is granted. A person can file for divorce on several grounds, some of which may be directly related to the other spouse’s incarceration. Illinois grounds for divorce include the former spouse being convicted of a felony, having used drugs excessively for two years or subjecting the other spouse to repeated physical and mental cruelty. Illinois also allows for a no-fault divorce, which means that the petitioning spouse does not have to prove that the other spouse did something wrong. The couple must have lived separately for two years, or for six months with both consenting to the divorce, before filing a no-fault divorce petition.

Divorce Process

A spouse initiates a divorce by drafting a Petition for Dissolution of Marriage. The petition identifies both spouses, any children of the marriage and the reason for the divorce. The petition is generally two to three pages and does not provide much detail regarding financial or personal issues. The petitioning spouse submits the petition to the clerk of the local court. She must then “serve” her incarcerated spouse by delivering a copy of the petition to him. Local law enforcement, in conjunction with the authorities of the prison where the spouse is being held, will deliver the documents to the incarcerated spouse on the petitioner’s behalf. The incarcerated spouse generally has 30 days from when he was served to submit a written response to the court.

Contesting Divorce and Who Appears

In Illinois, a divorce hearing is only necessary when the two sides cannot agree on the terms of the divorce. If the two spouses agree, only the person who filed the petition must attend court for the hearing. The non-petitioning spouse must sign the documents beforehand. Illinois does have a "simplified divorce" procedure, but that is not an option if a spouse is incarcerated. When the spouses cannot agree, the matter goes to a “pre-trial conference” and the judge reviews the issues. The spouses' attorneys represent the spouses at these hearings. At the hearing, the judge states how he is likely to rule on the contested issues. These statements are non-binding, however. If either party still refuses to agree, there is a divorce hearing and the judge makes a final ruling. Incarcerated spouses are not permitted to attend the divorce hearing, but may be represented by an attorney.

Child Visitation

Incarcerated parents rarely get custody of children. However, Illinois law says an incarcerated parent is generally entitled to visitation unless the overseeing court believes that contact with the incarcerated parent would endanger the child physically, mentally, morally or emotionally. However, the practical and financial issues of getting a child to the prison to see his parent can be difficult. To address these issues, Illinois allows for virtual visitation. This allows an incarcerated parent to communicate with his child via real-time video conferencing.

Property Division, Child Support and Spousal Support

Being in prison obviously limits a person’s ability to earn income, which in turn limits his ability to pay spousal or child support. As a result, an incarcerated parent is not expected to pay spousal or child support while in prison. As for the division of marital property, this is usually negotiated between the two spouses. Since the incarcerated spouse cannot pay support, the court and spouses may agree to divide the marital property disproportionately so the non-incarcerated spouse may be financially protected.