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Divorce and Incarceration 101 – Everything You Want to Know

Divorce and Incarceration 101 – Everything You Want to Know

As a single person, I consider myself lucky to be incarcerated because I don’t have to worry about a relationship. Almost everyone who has a significant other goes into lockdown thinking the relationship will live on, but the sad truth is that very few of these relationships survive jail time.

Whether it’s a spouse or boyfriend/girlfriend, it’s rare for someone on the outside to be able to deal with the trauma of a partner going to prison — or vice versa — especially when the sentence is longer than a few months.

In fact, research shows that every year someone is imprisoned, possibility of divorce up 32%.

Relationships and marriages are hard enough when you are all in the free world. However, the financial responsibilities, long distance, and daily struggles related to kids and work can be too much for people when their partners are cooped up.

If you were married when you were in prison, you can apply for a divorce while serving your sentence. Your spouse in the free world can also file for divorce from you. Which leads to today’s blog post: Divorce and Incarceration 101 – Everything You Need to Know.

In this blog post, I will cover the following topics:

  • Can You Divorce Someone In Prison?
  • How do prisoners file for divorce?

Can You Divorce Someone In Prison?

Yes, you can divorce someone who is in prison. Whether the inmate is in a state or federal facility — or in a county jail — you have the right to file for a divorce from someone who is serving a sentence.

I am not a lawyer and this is not legal advice. But when you’re looking to divorce an incarcerated spouse, the information I’m about to share can point you in the right direction.

When you divorce someone who is incarcerated, the process is very similar to ordinary divorce. If you and your spouse agree on all the important issues related to ending your marriage, you will likely be able to uncontested divorce.

This type of divorce proceeds quickly because both spouses agree to all the terms. They typically require less paperwork, lower attorney fees, and fewer court filing fees. Divorce rules vary by state, but an uncontested divorce usually requires the following:

  • Both spouses agree to end the marriage
  • Neither spouse is contesting child support or child custody
  • Spouses are not jointly bankrupt
  • No substantial property or assets need to be divided between spouses, and
  • Neither spouse is seeking alimony

It is best to consult an attorney when considering divorce, especially if your partner is incarcerated. There may be special considerations, and an attorney can help guide you through all the forms and materials that must be filed in order to proceed with the divorce.

There is also the possibility of a contested divorce if your incarcerated spouse does not agree to the separation, which will require more time and money. In this case, the judge will decide the outcome of the issues in dispute, which usually revolve around the distribution of assets and property, as well as spousal support, child support and child custody.

Incarcerated spouses are entitled to participate in the legal proceedings, and they will likely be granted permission to attend the hearing. They may get a guardian ad litem to appear in court in their place.

Although divorcing an incarcerated person is not much different from the regular divorce process, you must consult an attorney in order to understand the specific laws in your state and to understand how to proceed.

How do prisoners file for divorce?

The first stop for prisoners wishing to file for divorce is the prison law library. Often there are divorce kits available advising prisoners which forms to fill out and who to contact. Divorce is very difficult in prison because most inmates have no money and their ability to communicate with people outside is limited.

Some states offer indigent divorce options to incarcerated individuals, allowing them to file for free or for a minimal fee.

Required forms vary by county and state, but common forms included in an inmate divorce packet include:

  • petition. The petition states that you are filing for a divorce from your spouse. This form may include grounds for divorce, and the petition will usually list assets that you and your spouse share.
  • summons. A Summons is a piece of paper that your spouse will receive a copy of the divorce petition. The summons tells your spouse how long they have to respond to the divorce papers.
  • Court Information Form. The court information form will specify which court is handling your divorce case and which judge has been assigned to hear it.

Prisoners also have access to prison librarians, and some law schools offer help to prisoners with legal problems.

Again, this is all general information, I’m not a lawyer. If you need specific information about filing for a divorce from an inmate, please contact an attorney.

Do you think it should be easier for people who marry prisoners to get divorced? Let us know in the comments below.


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How to divorce an incarcerated spouse