How Can an Inmate File for Divorce While Incarcerated?

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Based on the yearly number of marriages and divorce rate in the United States, up to 53% of marriages end in divorce. 

Suppose you are among the 2.3 million incarcerated individuals in a federal, state, or local prison. You may also have the ability to end your marriage.

Inmates may wish to obtain a single status to convert the status of a spouse to a former spouse for various reasons. 

Many people try to sustain relationships after they become “locked up.” However, relationships may be challenging to preserve if the prison sentence lasts for several months or years.  

If your partner in marriage is an incarcerated person, you may need to contact them before filing for divorce. 

Our website, lookupinmate.org can provide a tool to search for an inmate in a federal, state, or local prison. We collected the critical information to help with your search. 

Here is how it works. Our one-stop inmate lookup site allows access to inmate records from thousands of United States (U.S) correctional facilities. 

These institutions include federal, state, and local prisons, immigrant detention facilities, and military prisons.

This article explains the steps to get a divorce in prison, potential reasons for divorcing while in jail, whether imprisonment can be a reason for divorce, contested and uncontested divorces, and support and custody issues.    

What If I Want to Divorce My Spouse While Incarcerated?

Prison marriages and divorces are possible in federal and state prisons. 

Incarcerated individuals have the right to marry. However, they must meet federal or state requirements to marry. Additionally, they must adhere to a state’s department of corrections (DOC) policy requirements or the U.S. Bureau of Prisons (BOP). 

Suppose the judicial system has incarcerated you in a U.S. state, such as California. The law permits you to file for divorce while you are in prison. The various requirements may include:

  • You must have resided in the particular state for a minimum period
  • You must have lived in the county where you reside for a minimum period 

If you or your spouse meet the specific requirements mentioned above, you can file for divorce. 

Filing for divorce while “behind bars” may not be the best option. Here are some of the main reasons:

  • A judge may not permit you to appear in court. They may also make decisions about divorce-related issues such as child visitation rights. 
  • You cannot have physical custody of your children or appear in family court. However, a judge may permit it after release from a correctional facility if you have obtained a job or received post-release counseling.

In addition, in some states like California, inmates cannot attend a divorce hearing. 

Meanwhile, you may have the right to attend a court hearing that may terminate parental rights. However, such cases overlap divorce cases. Hence, a divorce judge will likely use their discretion regarding parental rights.   

Steps to Get a Divorce While in Prison

The divorce proceedings may seem daunting without access to financial resources to pay a lawyer. It may also be difficult to secure information on your behalf. 

Resources for filing a divorce while in prison include:

  • Prison law library 
  • Local court clerk’s office 

Hence, you may possibly file for a divorce without a lawyer’s assistance.

However, remember that a divorce can be a complex legal process. Consider consulting a divorce attorney before you file for a divorce.

Preparing for the Divorce

Determine whether the divorce process is ideal for you. Consider which type of divorce is optimum for your unique situation. 

The four primary types of divorce include: 

Dissolution

Dissolution or “regular divorce” ends a couple’s marriage or domestic partnership. The partners settle all other aspects of the marriage.

The spouses must agree to a settlement agreement or a marital settlement agreement (MSA). An MSA is a legally-binding written contract in which the divorcing spouses resolve divorce-related issues. 

Some issues involved in the settlement may include:

  • Custody: A divorce court may appoint a guardian ad litem (GAL) to investigate which solutions are in a child’s best interests during a divorce. A GAL advises the court based on their findings. 
  • Financial support for children: For example, if your spouse has failed to pay court-ordered child support, the “default judgment” may be grounds for divorce.  
  • Alimony (financial support for a spouse)
  • Division of property 

Summary Dissolution

A summary dissolution is a simple form of divorce. It is less complicated than a  regular dissolution. 

You must generally meet particular criteria to qualify for this type of divorce, such as: 

  • Have been married for a minimum number of years.
  • Have no children together.
  • Own no land or buildings besides your home.
  • Have a minimum value in acquired property. 
  • Have no separate property over a specific value. 
  • Do not possess over a particular amount in debt.
  • Agree that neither spouse will get support.
  • Sign an agreement to conduct property division and debts equally.

Annulment

Annulment differs from divorce. The court order specifies that the original marriage was invalid. Possible reasons include one person misrepresenting themselves, or the marriage is illegal. 

States have valid grounds for annulment, including:

  • Deceit
  • Fraud
  • Marriage of minors
  • Marriage of incompetent individuals 
  • Incest

It is best to check state laws for annulment criteria. 

Legal Separation 

Legal separation allows a couple to live separately. However, unlike dissolution, it is not a final order. You and your partner must complete a dissolution to end the marriage. 

In a legal separation, the property either party acquired following the separation is separate property.

Completing the Necessary Paperwork

Step 1: Collect the required documents

Prison libraries likely have divorce forms. The state you live in and the kind of divorce you want to secure will determine the forms you need. The documents you may need include:

  • Divorce Petition: Includes the reasons for divorce and you and your spouse’s assets. 
  • Divorce summons: A piece of paper tells the spouse how long they have to respond to divorce papers. 
  • Court information sheet: Specifies which court and judge are handling the case

Step 2: Ask for resources to process divorce.

You can get help with legal issues from the law library and jailhouse lawyer. A law school clinic may also be available. 

Step 3: Complete the paperwork 

Fill out forms for your county of residence at the state court’s website. You must know your spouse’s:

  • Full name
  • Current address
  • Names and ages of your children together 

The forms are typically “fill in the blank” varieties. 

A non-incarcerated loved one can fill out the forms and file them on your behalf. Examples include a family member or friend. 

  • If you cannot afford such court filing fees, complete an affidavit for a fee waiver. An affidavit is a sworn statement put in writing. 

Step 4: Pay the filing fee

You can request a fee waiver if you cannot pay it. You can fill out a form from the court clerk.  

Filing for Divorce

Step 1: File the paperwork
Get help from the prison’s legal services. They can provide divorce forms and file them. You can also have a friend or family member file the papers with the court clerk for you. 

Step 2: Provide a copy of the divorce papers to your spouse

This step is required for the court to proceed with the case. You can serve the divorce documents to your spouse (respondent) through certified mail or in person. 

State laws vary about one-sided divorces. However, typically you must make a formal attempt to locate your spouse to serve notice about the divorce. 

You may also conjecture whether your husband or wife can divorce you without informing you. Courts tend to discourage “unilateral” divorces that do not include the consent of one spouse.  

Hence, you should attempt to notify your spouse about the divorce proceedings. This advice applies in situations such as being in prison or another country. The process can help increase your chance of finalizing the divorce. 

Step 3: Provide a copy of the divorce papers to your spouse

This step is required for the court to proceed with the case. You can serve the papers through certified mail or in person. Your spouse must sign the divorce papers. 

To serve them in person, hire a process server (such as a sheriff or deputy) or have someone you trust hand the summons and complaint to your spouse. 

Step 4: File a proof of service affidavit

The person delivering the divorce papers must sign this document. 

Sign the affidavit if you send the papers via certified mail.  

Complete these steps before a judge can approve your paperwork and issue a divorce decree. 

Do You Need a Valid Reason to Divorce?

You may have wondered, “Do I need a reason to divorce my spouse?”

State courts have a process for marriages to end. One example is you may claim your marriage is “irretrievably broken.” 

If you prove these claims, you cannot mend your relationship. 

Your reason for divorce does not need a direct link to a partner’s incarceration, such as domestic violence or restraining orders. However, you can use it as proof your marriage will not work out.

Can Incarceration Be the Reason for a Divorce?

In states like California, spouses do not need to provide a reason for divorcing since the process is a “no-fault divorce.” Other states are “fault divorce.”  

In such states, you can state the marriage is not working out due to “irreconcilable difference.” or the marriage cannot function. 

In fault divorce states, you must prove your spouse is at fault for the marriage breakup. Valid reasons may include:

  • Adultery 
  • Homosexuality (not agreed upon pre-marriage)
  • Infertility
  • Impotence
  • Criminal conviction
  • Imprisonment

In both types of divorces, you may file a divorce for an imprisoned spouse.  

Contested vs. Uncontested Divorce: What Is the Difference? 

When terminating a marriage, both parties must determine the resolution of issues related to the divorce. They must negotiate topics like:

  • Child support and alimony
  • Child custody 
  • Division of property
  • Financial assets (such as joint bankruptcy)

Uncontested Divorce

Both parties agree on all aspects of issues related to the marriage resolution. 

Contested Divorce

The contested issues require litigation in court to find a ruling. Individuals may consult an attorney. The process will include many:

  • Filed paperwork
  • Due dates
  • Legal procedures 

An attorney can help with legal forms and special considerations. 

Child Support and Custody Issues

A judge may require an incarcerated spouse to pay child support and spousal support in a divorce situation. However, they will not have physical custody rights and have no rights to receive child support payments.

If one spouse enters a prison, a court must update existing child custody and visitation arrangements. 

Do I Need a Lawyer for Assistance Regarding Marriage or Divorce?

Before marrying or divorcing an imprisoned person, consider seeking legal advice from a divorce lawyer, such as a family law attorney or family lawyer. You can consult an attorney to learn about divorce laws and your rights and options. 

An experienced lawyer can help protect you, your family, and your interests. Before signing a contract, ensure you read the terms and conditions, including attorney fees and disclaimers. 

References

1. Provisional number of marriages and marriage rate: United States, 2000-2019
https://www.cdc.gov/nchs/data/dvs/national-marriage-divorce-rates-00-19.pdf
2. How 2.3 Million Incarcerated People Are Currently Excluded from the Aspiration of Full Employment
https://rooseveltinstitute.org/2021/05/17/2-3-million-incarcerated-people-excluded-from-aspiration-of-full-employment/
3. Default judgment 
https://www.law.cornell.edu/wex/default_judgment
4. Marriage of inmates
https://www.bop.gov/policy/progstat/5326_005.pdf
5. Divorce rate by country 2022
https://worldpopulationreview.com/country-rankings/divorce-rates-by-country
6. Divorce and incarceration 101 – everything you want to know
https://prisoninsight.com/divorce-and-incarceration-101-everything-you-want-to-know/
7.  Family law issues with an incarcerated spouse or parent 
https://www.berenjifamilylaw.com/family-law-issues-incarcerated-spouse-parent
8. How to get a divorce in prison 
https://www.wikihow.com/Get-a-Divorce-in-Prison
9. The different kinds of divorce
https://www.divorcenet.com/resources/divorce/the-different-kinds-divorce.htm
10. Marital settlement agreement
https://www.divorcenet.com/resources/divorce/divorce-basics/how-enforce-a-marital-settlement-agreement
11. How to get a divorce without your spouse
https://www.divorcenet.com/resources/how-to-get-a-divorce-without-your-spouse.html
12. How to deal with unilateral divorce
https://www.grahamlawfirmva.com/blog/deal-unilateral-divorce/
13. The Complications of Divorce When One Spouse Is Imprisoned
https://www.budgetdivorcecenter.com/divorce-and-an-incarcerated-spouse-budget-divorce-center
14. How to divorce someone in prison California 
https://pridelegal.com/divorce-someone-in-prison/
15. Divorce, marriage, and incarceration 
https://www.legalmatch.com/law-library/article/divorce-marriage-and-incarceration.html

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