When a spouse goes to prison, it can be extremely upsetting for the whole family, and it may cause you to rethink the status of your relationship. You're not alone; studies show that if one partner is incarcerated during the marriage, divorce becomes more likely. The correlation becomes stronger the longer the incarcerated partner's sentence: each year of a prison sentence increases the odds of divorce by about 32% on average. If you're considering ending your marriage, you may want to know how your spouse's imprisonment will affect divorce proceedings. Take a look at what you need to know about divorcing a partner who's doing time.
If you have a simple and uncontested divorce, the biggest thing you have to worry about is getting the right paperwork and filling it out correctly. When your spouse is incarcerated, you may have to take a few extra steps in order to do this. For example, in some jurisdictions, you need a filing form for divorcing an incarcerated spouse, while in other jurisdictions, you can just use the no-fault divorce filing form. Your local family court clerk can tell you which form you need.
You'll also need to get a copy of your spouse's sentencing papers to attach to the divorce filing. You can ask for these at the criminal court where your partner was convicted. The specific document that you need to ask for is the mittimus. This is the document that formally commits your spouse to a prison facility.
When you submit the completed paperwork to family court, remember to ask whether the court serves paperwork to incarcerated spouses, or whether you will need to do it. If you have to serve the papers yourself, you can send them via certified mail.
If Your Spouse Won't Sign
If your spouse won't sign the no-fault divorce papers, you may need to take additional steps. A lot depends on where you live. In some areas, if your spouse won't sign the papers but doesn't file any written response either, the judge may allow the divorce to go through by default after a certain period of time has passed.
In other cases, for example, if your spouse wants to contest the divorce, you may need to file at-fault divorce forms with the court. Criminal conviction is grounds for divorce, so your partner's incarceration is a good enough legal reason for the divorce in and of itself. Also, if your spouse is incarcerated for a crime against you or your children, like domestic violence, you can request a divorce on the grounds of cruelty.
Child Custody and Support
For practical reasons, incarcerated spouses are rarely granted custody of their children, so you shouldn't have difficulty retaining physical custody yourself. However, it's important to know that your spouse does have the right to argue for visitation rights, and a judge can order you to allow your children to visit their other parent in jail if it's determined to be in their best interests. In some areas, virtual visitation by video conference is allowed in order to address some of the practical and financial barriers to bringing children to a prison visitation. Keep in mind also that once your spouse is released, they can then apply for custody or increased visitation. If you don't want your children to visit your spouse at all, you will have to prove in court that visits will cause physical, mental, or emotional damage to your child.
An incarcerated spouse won't be earning an income, so they may not be ordered to pay child support during the time of their incarceration. However, if your spouse has passive income that they'll continue to earn while in prison, like book royalties or stock dividends, then the court can order child support to be paid during the time of incarceration. Another option, if your spouse will have no income in prison, is for the court to disproportionately divide the marital assets in your favor in order to offset the support that you won't be receiving.
You may need legal advice, especially if you're unable to obtain a simple no-fault divorce, or if there are considerable assets that need to be divided. Contact a divorce lawyer in your area to help you navigate the ins and outs of divorcing an incarcerated spouse. For more info, contact a divorce attorney.Share