How to Divorce an Inmate

By Claire Gillespie

Updated February 05, 2020

Young bride is signing pre marriage agreement

Dobrila Vignjevic/E+/GettyImages

Incarceration can take a serious toll on a marriage, particularly if the jail sentence is a lengthy one. Someone who wants to divorce his incarcerated spouse doesn’t have to wait for her release to start legal proceedings, and divorcing an inmate isn't all that different than if the other party were a free citizen. However, as with all legal matters, state laws vary.

Incarcerated Spouse Divorce Filing Forms

The standard forms for commencing divorce proceedings are used when the spouse is in jail. These may be called "Complaint for Divorce," "Petition for Divorce," "Petition for Dissolution of Marriage" or something else. The best thing to do in the first instance is speak to the clerk at the local family court, who will provide the correct forms and all necessary directions regarding filing and fees.

For instance, in Florida, the petition for dissolution of marriage requires only that the petitioner provide an address for the respondent if he is the father of her children. If this applies, the prison address can be provided in the relevant section.

In some states, such as Illinois, the incarcerated spouse's inmate number must be included on the paperwork. If the petitioner doesn't have this information, she can look up her spouse on the state's Department of Corrections website.

Incarceration as Grounds

In some states, such as New York, the incarceration of a spouse is considered one of the grounds for divorce, provided any required time limits are met. In New York, the spouse has to have been imprisoned for three years or more prior to filing for divorce.

In other states, the mere fact of a spouse’s incarceration is not sufficient grounds for divorce. For instance, Florida has only two grounds for divorce – irretrievable breakdown of the marriage or mental incompetence.

If a spouse is incarcerated in Maryland, the petitioner has grounds for a fault-based divorce. The same applies in Mississippi.

Exceptions to Incarceration Grounds in Texas

Texas law recognizes the no-fault ground of insupportability for separating from an incarcerated partner, and the law does not require the differences between partners or reasons for the divorce to be explained. It's also possible to use conviction of a felony as grounds for divorce in Texas.

However, the incarcerated spouse cannot have been pardoned for this felony and must have been in jail for a minimum of one year. Even if the incarcerated spouse was not convicted of a felony, time spent living apart can be used as grounds for divorce. The minimum qualifying period of time spent living apart is three years, although the spouse need not have been in prison for the whole time.

Serving an Incarcerated Spouse

Anyone filing for divorce must serve the papers on his spouse, and a spouse’s incarceration should not impede service. A private process server or the county sheriff can deliver the divorce petition and accompanying documents to the spouse at the prison. If the spouse does not object to the divorce, the papers can be mailed to her along with the waiver of service of process. If the spouse signs the waiver and returns it to the petitioner, it can be filed with the court; this eliminates the requirement to use a process server.

When a respondent is in prison, service of divorce papers requires the cooperation of the Department of Corrections and Rehabilitation. The process may vary slightly by state, but generally it involves sending the documents to the litigation coordinator at the facility, together with a proof of service form and self-addressed stamped envelope. The litigation coordinator logs in the documents and gives them to the respondent’s correctional counselor, who passes them to the respondent. In some cases, local law enforcement may deliver the divorce papers to the facility.

Time for Filing a Response

Regardless of method of service, a respondent has a certain amount of time to file a response to the petition with the court. This can be done from jail, with or without the help of an attorney. In Florida and New York, the respondent has 20 days to file a response. In California, the respondent has 30 days to file a response.

If an incarcerated spouse objects to the divorce, it can be an extremely time-consuming process. If many court hearings are involved, lengthy delays should be expected. The court has a lot of discretion to give the inmate permission to attend hearings, but the correct legal process must be followed.

If leaving prison is not an option, the inmate may be allowed to "attend" hearings by phone. An inmate's limited access to legal services is another potential cause of delay.

Divorcing a Legally Incapacitated Spouse

An incarcerated spouse is considered to be legally incapacitated in some states, such as Virginia. This means he can't represent himself in divorce proceedings – he needs to have an attorney. The court will appoint a guardian ad litem (GAL) to represent his interests. Unfortunately, the petitioning spouse has to pay for the GAL, which increases the cost of the divorce.

Exceptions may exist depending on the type of crime for which the incarcerated spouse has been convicted.

Divorcing a legally incapacitated spouse doesn't necessarily make proceedings more complicated. Generally, a divorce hearing is required only when the two sides can't reach an agreement on the terms of the divorce.

When Children Are Involved

If there are children of the marriage, state law may require divorcing parties to attend parenting classes and possibly mediation. Clearly, attending classes in person is difficult for the spouse who is in jail. However, the law sometimes provides exceptions for special circumstances like incarceration. In Florida, a parent can attend an online parenting class instead.

An incarcerated spouse obviously cannot have physical custody of her children while she is incarcerated, and her criminal record may stop her from sharing joint custody after her release. Any decision the court makes regarding visitation or custody is always based on what is believed to be in the best interests of the children.

Visitation With Children for Incarcerated Parents

Some states have provisions for incarcerated parents to help them have visitation with their children. For instance, in Illinois an incarcerated parent is generally entitled to visitation unless the court believes that would cause the child physical, mental or emotional harm.

Obviously, the greatest obstacles may be practical ones. It may be difficult to get a child to prison to visit his incarcerated parent. In this case, Illinois law allows for "virtual visitation," whereby the inmate can communicate with her child via real-time video conferencing.

Finalizing Financial Matters

Like all divorce cases, financial matters relating to the division of marital property and spousal and child support must be finalized when the respondent is an inmate. In some states, a petitioner in divorce proceedings may be awarded a greater share of marital assets than the incarcerated spouse. For example, the family court in Florida and Illinois may give the petitioner more of the marital property to make up for not getting support while the respondent is incarcerated.

In many cases, the respondent may not have to provide financial support (either spousal or child support) until after he is released from jail, based on the fact that being in prison hinders a person’s ability to earn income, which in turn affects his ability to pay spousal or child support.