How Do You Divorce An Imprisoned Spouse?

If your spouse is suddenly incarcerated, you may -- quite understandably -- be thinking about divorce. Thanks to changes in divorce laws over the years, you do have options that will allow you to escape the marriage. Unfortunately, your spouse's imprisonment means that you'll probably have to go through a few extra steps and there are other important considerations.

This is what you need to know about divorcing a spouse who is in prison.

1. Imprisonment may equal automatic grounds for divorce.

Many state laws make imprisonment one of the grounds over which a spouse can sue for divorce. That can be an advantage if the requirements in your state for a "no-fault" divorce include a lengthy waiting period. Divorce "for cause" will often give you a quicker way out of the marriage. The laws vary quite a bit from state to state, however, so you'll need to check with a divorce lawyer in your area to see if they apply to your situation. For example, in Ohio, any imprisonment in a state or federal penitentiary (but not a city or county jail) is grounds for a divorce, while in Massachusetts your spouse has to be sentenced to five years or longer.

2. You may have to pay for your spouse's attorney.

In some states, incarceration puts someone under a legal "disability," meaning that his or her interests must be specifically protected. He or she has to be provided a representative before the court. Since there's no mandate for the state to provide inmates with an attorney over civil matters like divorce, you'll probably have to foot the bill. Again, these rules are highly specific in each state, so make sure you find out from your attorney before you start so that you're prepared for the expense.

3. You may need to take an extra step or two to serve the papers.

All subjects of divorce proceedings have to be formally notified in advance. While locating your spouse to serve him or her the documents won't be a problem, you will have to route the paperwork through whatever process the prison uses. Generally, the easiest way to handle the matter is to hire a professional, like a sheriff or a process server, because they usually know the correct procedure and can make sure that you have the proof you need to file with the court.

4. Child support and custody may be ongoing problems.

As long as your ex-spouse is incarcerated, he or she won't have to pay child support. This sometimes comes as a shock to people contemplating divorce because they don't realize the law makes no provisions for the children of inmates. In addition, while child custody and visitation aren't really an issue while your spouse is imprisoned, they can be reopened once your ex-spouse is finally released. Even though your ex may have a criminal record, the court may order some form of visitation. That's also something that people often find shocking -- so it's wise to prepare early for the possibility. 

For more information about how to handle this difficult time in your life, consult a divorce lawyer today.

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