For many couples, marriage isn’t always easy. On top of that, recent studies show that incarceration can drastically increase the odds of marriages ending in a divorce by 32%. The correlation between incarceration and marriage failure could be due to several reasons that cause the quality of a relationship to suffer such as financial responsibilities, long-distance, violence, extramarital relationships, etc. Holding on to a relationship that doesn’t work out may just prolong stress and pain for both spouses. Fortunately, individuals still have the liberty to terminate their relationship even if their spouse is in prison.
Can I file a Divorce if My Spouse is in Prison?
An individual has the right to file for a divorce from someone who is in prison. Additionally, this applies to either case; an individual who is looking to file a divorce with their spouse who is in prison, or the inmate that wants to file for a divorce. Typically, the court will not differentiate between state and federal prison. . However, laws regarding divorce will depend on the jurisdiction of each state. As a general rule of thumb, to file a divorce in California, the spouse must be a resident of California for at least 6 months and in the county where you are planning to file the divorce for at least three months. Additionally, if your spouse is incarcerated in prison for at least three months, you can file a divorce in that county.
Can Incarceration Be The Reason For The Divorce?
Since California is a “no-fault” state, spouses do not need to give a reason for why they are divorcing. However, it is important to keep in mind that the answer to this question also depends on the laws regarding divorce in each jurisdiction. Generally, for a divorce, there are two types of states, no-fault divorce states and fault divorce states. There are 17 no-fault divorce states;
- Wisconsin
- Oregon
- Washington
- Nevada
- Nebraska
- Montana
- Missouri
- Minnesota
- Michigan
- Kentucky
- Kansas
- Iowa
- Indiana
- Hawaii
- Florida
- Colorado, and
- California
Individuals filing for a divorce in these states do not need to provide any reason to terminate the marriage. For example, because California is a no-fault state individuals have the right to get a divorce simply because the marriage no longer works out. In most cases, divorce applicants in no-fault states will file the reason for divorce as an “irreconcilable difference”, which simply means the marriage can no longer function. Additionally, the term irreconcilable difference covers a wide array of reasons. Being incarcerated can be included under this term.
On the other hand, individuals filing for a divorce in fault divorce states must prove that the other spouse is at fault. In simple terms, individuals must have a reason to blame the other spouse for the breakup of the marriage. Reasons that can be considered to be at fault may include adultery, homosexuality not agreed upon before the marriage, infertility, impotency, criminal conviction, and imprisonment.
Typically, faults and no-fault states play a big factor in most divorce cases. However, in regards to the matters of divorcing an incarcerated spouse, both types of states recognize individuals’ rights to file a divorce on such grounds.
Filing Process For Divorcing Someone In Prison
The process of filing a divorce with a spouse who is in prison is generally similar to that of an ordinary divorce. Briefly, petitioners who want to file a divorce need to;
- Complete forms required by the state
- File forms to the court
- Summons (tells the respondent how long they have to respond to the petition)
- Notify the incarcerated spouse of any court proceedings (via California Department of Corrections)
For the incarcerated spouse, paperwork and other forms will be made through the Warden at the jail or prison. Petitioners can send papers directly to a litigation coordinator at the facility the spouse is in. Next, petitioners will receive proof of service sent by the litigation coordinator. Lastly, it is the petitioner’s or their attorney’s responsibility to send proof to family court.
What Is The Difference Between A Contested vs. Uncontested Divorce?
The first few steps towards terminating a marriage require both parties to come together in order to figure out the resolution of the issues relating to the divorce. This step is done by negotiating issues such as child custody, child support, division of property and financial assets, etc.
The negotiation process will greatly determine whether the divorce will be contested or uncontested. Like any ordinary divorce case, the complexity of a divorce will depend on the extent that both parties are willing to negotiate with each other. An uncontested divorce means that both parties can successfully come to an agreement on all aspects of the issues relating to the marriage resolution. For instance, an uncontested divorce may include;
- Both parties agree to end the marriage
- There is no dispute in child support or child custody
- Neither spouses have a joint bankruptcy pending
- No substantial property needs to be divided between the spouse
- Neither spouse is seeking alimony
In this case, the filing process may be filed to the court. Additionally, uncontested divorces may even not require any further courtroom processes. On the contrary, the process of filing for a contested divorce can be a little more complex when the parties cannot come to an agreement to resolve their issues. In this case, the contested issues will require litigation in court to find a ruling on each issue. Individuals may want to seek to consult with an attorney at this point. The process of going through a divorce will entail many paperwork, due dates, and legal procedures. Especially under circumstances where individuals are trying to divorce an incarcerated spouse, an attorney may help with any special considerations, legal forms or submit any other material relevant to the case.
Will My Spouse Be Able to Attend Hearings In Prison?
Although the incarcerated spouse has the right to file a divorce or be filed for a divorce, the process does not give them exceptions to receive extra privileges. In other words, incarcerated spouses do not have an absolute right to attend a divorce proceeding. Under California Penal Code Section 2625, prisoners may only have the right to attend court proceedings that involve the termination of the prisoner’s custody rights or adjudicate the prisoner’s child. Since divorce proceedings don’t deal with either matter, prisoners do not have the absolute right to attend the hearing. However, the incarcerated spouse may make a request to attend these hearings to the court.
Reasons You May Not Want To File For A Divorce While In Prison
When a couple decides that their marriage is no longer working out, they may want to terminate the marriage immediately. However, in the case that a spouse is incarcerated, there are several considerations why you may want to wait until the release to file the divorce;
- Incarcerated spouses can only be present in court if necessary
- Incarcerated spouses can not have physical child custody
- Waiting to divorce after the release date can increase the chance of custody the incarcerated spouse can obtain.
- Arrangement of child visitation rights can be difficult to establish
- Incarcerated spouses may not represent themselves as freely in marriage resolution matters.
This means that separating properties and assets can take more time.
Contact Pride Legal
If you or a loved one has been thinking about divorcing someone in prison, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
