Divorce in Prison Guide: How Does Divorce Work in Jail?

Divorce can be one of the most challenging processes to put through the court system, depending on how much property and assets you and your spouse have together, whether there are children involved, and whether you agree on the divorce.

If one spouse is in jail, this process can become even more complicated. In usual divorce proceedings, the spouses can meet in person, often through a mediator or their attorneys, to discuss the divorce and division of property, child custody, etc. From prison, these tasks aren’t as straightforward.

Still, it’s not uncommon for spouses to get divorced when one is in jail. In fact, the divorce rate for couples with one incarcerated spouse is higher than the U.S. divorce rate of up to 50%. Couples do have the right to divorce, regardless of either party’s status in prison.

Can You Divorce an Inmate?

If your spouse is currently incarcerated in jail or prison, you still have the right to divorce them. Your right remains the same as it would if your spouse was free, meaning that you can file for divorce without your spouse agreeing to it.

This is known as a contested divorce. An uncontested divorce happens when you and your spouse have discussed the divorce and agree to its proceeding and issues involved with the divorce. A contested divorce can be a bit more complicated because it may take more negotiating on either party’s behalf to agree on significant issues in court.

With an incarcerated spouse, you and your attorney may not have easy access to your spouse to discuss and negotiate these issues. Your spouse may only be able to communicate with you through phone calls during specific call times to discuss your divorce.

Inmate Divorce Rights: Can You Divorce Someone When You’re In Jail?

As an inmate, you still have the right to divorce your spouse. Having a prison file does not waive your right to fair divorce proceedings. You can file divorce paperwork, hire an attorney, and negotiate the proceedings like you would with a regular divorce.

However, you’ll complete each process from jail, in most cases, unless a judge grants you the right to appear in court or mediation in person. Just as the process could be more complicated than usual for your spouse outside of prison, the divorce could also be more complicated for you while you’re in prison.

Consider if Divorce is the Right Step

Couples often go straight to divorce if they’re having problems in their marriage. When a couple can’t see each other regularly because one spouse is in prison, this can add another layer of hardship to the marriage.

However, divorce may not always be the answer. Give your feelings careful consideration to determine if a divorce’s finality is what you both actually want. In some cases, short-term work on the marriage can lead to long-term positive results.

If you know for sure that being married isn’t in your best interest, then consider other options first, like dissolution or legal separation. A dissolution is available in many states. It’s a good choice if you and your spouse agree on every component of the divorce, such as child visitation and allocation of property and assets. It can be a much simpler process than divorce while still terminating the marriage.

A legal separation tells the court that you and your spouse live apart and allows for the separation of assets, property, etc. However, a legal separation offers some benefits to a couple, like enabling parties to keep retirement or insurance benefits in place. It can also be a helpful trial for you both to decide if divorce is the right move.

How to Divorce Someone in Prison

To divorce a spouse in prison, you’ll first need to check with your local court system to determine if there are any special requirements for a divorce involving an incarcerated spouse. Some local laws may vary, but you can usually get the information you need from a lawyer or your county’s clerk of courts.

You’ll also need to determine how to serve your spouse the papers. Again, an attorney or clerk of courts can help you figure out how best to serve your spouse the divorce papers when they’re in prison.

You can expect the rest of the divorce proceedings to be similar to what they’d be if your spouse were not incarcerated. However, your spouse may not be able to show up in person to court or mediation proceedings and may, instead, need to connect via video or phone call, depending on the court system’s rules.

How to Divorce Someone from Prison

If you plan to divorce your spouse while you’re in prison, there are a few steps you’ll typically need to follow:

Find Incarcerated-Spouse Divorce Filing Forms

You can locate the papers you need to file a divorce from the prison library. The librarian should be able to help ensure that you get the proper forms required to complete your divorce paperwork, like the divorce petition and the summons that will be served to your spouse. Make sure each form is filled out completely and correctly to prevent any hiccups in the filing process.

Get Help from an Attorney

Divorce paperwork can be challenging to complete on your own, so it might be beneficial to seek the help of an attorney. Ask if there is a prison attorney who can help you file your paperwork. Some court systems also provide legal aid services to prisoners.

Pay for a Divorce

You may be responsible for paying divorce filing fees. However, some court systems waive these fees for prisoners or have a program you can apply for to get payment assistance with filing fees. If you decide to hire a lawyer to help with the divorce process, you and your legal team can negotiate a payment plan.

File Your Papers

Ask for help from your prison’s legal service to file your divorce paperwork. Alternatively, you can contact a trusted person to file the papers for you. Some court systems also allow you to mail the documents to the clerk of courts, but you should contact the office first for specific instructions. Be sure to get proof of your papers’ filing to keep for your records.

Conclusion: Divorce While in Jail

While divorce from jail has a few extra barriers that you may need to get through, it’s still possible for you and your spouse. The information above is not legal advice; instead, this information is designed to help you navigate the process and understand your rights.

If you have any questions regarding divorcing your spouse who is in jail or filing for divorce from prison, it’s important to speak with a lawyer as soon as possible. As an inmate, visiting the prison library is your first course of action. A librarian or prison attorney might also be able to guide you toward the proper paperwork and filing process.