Can a Divorce Take Place in Texas if the Spouse Is Incarcerated?
By Jennifer Williams
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If you wish to divorce your incarcerated spouse in Texas, the procedure is much like any other divorce. The residency requirement must be met, after which Texas provides three grounds for divorce, which may be used to justify dissolution of the marriage. Two grounds for divorce of an incarcerated spouse are fault grounds and one is no-fault. The Petition for Dissolution must name one of these grounds as justification for the divorce. Once filed, the incarcerated spouse must either waive service or the Petition must be served on the spouse at the correctional facility.
Residency, Initiation of Divorce
Seeking a divorce in the state of Texas requires that one or both spouses live within the state for at least six consecutive months before filing the divorce paperwork with the court. You begin the divorce by drafting a Petition for Dissolution of Marriage and filing it with the circuit court in the Texas county of residence. The petition must explain why the divorcing spouse wants the divorce. In other words, you need to state the grounds for the divorce. Your spouse must receive notice of the divorce action, unless he signs a waiver which states that he does not want or need notice. If no waiver of service is signed, a professional process server, who is located in the same county as the correctional facility where the spouse is incarcerated, must deliver a copy of the Petition to the incarcerated spouse. If the incarcerated spouse contests the divorce, he must execute a power of attorney that gives an attorney licensed in Texas the right to speak for him at all hearings, since your spouse will be unable to appear in person in court.
Title 1, section (C) (6) (a) of the Texas Family Law Code explains the divorce grounds recognized as Texas law. Texas recognizes three grounds that can be used to divorce an incarcerated spouse. The first is insupportability, which, in Texas, is the only no-fault ground. Differences or disagreements between the spouses, which cannot be resolved, facilitates use of this ground. There is no requirement that the specific irreconcilable differences of the spouses be named or explained.
Conviction of a Felony
The second ground for divorce used in divorcing an incarcerated spouse is that of conviction of a felony. The incarcerated spouse must actually be convicted of a felony, be incarcerated within the Texas penal system for at least one year and he cannot have received a pardon. Additionally, the felony conviction cannot be the result of testimony of the divorcing spouse.
The third ground for divorce in which one spouse is incarcerated in Texas, is if spouses have lived apart for three or more years. There is no requirement that the incarcerated spouse be incarcerated for the entire three years, or that living apart was the result of the incarceration.
Divorcing from Prison
In Texas, an incarcerated spouse may initiate a divorce the same way a non-incarcerated spouse does -- by filing a Petition for Dissolution of Marriage. This Petition must be filed in the Texas circuit court of residence, which in the case of an incarcerated spouse, means the county where the correctional facility is located. The other spouse must be served with the Petition by a professional process server. To proceed with the divorce, the incarcerated spouse must himself retain a divorce attorney who is licensed to practice in Texas. He must also execute a power of attorney, which gives the attorney the right to speak for the incarcerated spouse at all hearings, as the incarcerated spouse cannot appear in court.
An attorney for more than 18 years, Jennifer Williams has served the Florida Judiciary as supervising attorney for research and drafting, and as appointed special master. Williams has a Bachelor of Arts in communications from Jacksonville University, law degree from NSU's Shepard-Broad Law Center and certificates in environmental law and Native American rights from Tulsa University Law.