How to divorce someone in prison is best done when guided by a legal expert, but it is very similar to other divorce procedures.
By submitting a Petition for the Dissolution of Marriage, the petitioning spouse or the spouse who is not in jail can start the divorce procedure.
Read this guide until the end to familiarize yourself with the complete process.
How to Divorce a Spouse in Prison?
Divorce starts with the filing of the petition, and after the petition has been submitted, the petitioner must provide a copy of the petition to the spouse who is in jail in order to serve them with it. On behalf of the spouse, the local law enforcement personnel will deliver the documents to the incarcerated spouse.
You don’t need to fill out any more paperwork when getting ready to divorce an inmate due to imprisonment. Visit your attorney, complete the paperwork, and have it delivered to the prison. Given how easy it is to locate someone who is incarcerated, serving them in prison is simple.
Here is a step by step guidance for divorcing your spouse in prison:
– Preparing Documents
Petitioners who seek to initiate a divorce must:
- Complete the state’s paperwork requirements.
- Send the paperwork to the court.
- Provide a summons (tells the respondent how long they have to respond to the petition).
- Notify the incarcerated spouse of any court cases.
– Serving the Paperwork
There are certain guidelines for divorce document service if your spouse is incarcerated. You must keep in mind the following before serving the documents:
- The address of the facility or jail where your spouse is being held, as well as your spouse’s Master Index Number (MIN)
- You cannot present your spouse with the divorce papers in person
Instead, you must mail the divorce papers together with a note that they be forwarded to your spouse to the prison official in charge of the facility where your spouse is being held.
– Receiving Confirmation Proof
Jail authorities will provide you with a Return of Service form as confirmation that your spouse received the documents after they have been delivered to them.
The sheriff will email you documentation proving that your spouse received the paperwork after the spouse has been served. Additionally, you need to submit proof of service to the court.
– Attending Court Hearings
The divorce process does not grant the jailed spouse any special rights, even though they have the opportunity to apply for or be served with a divorce. In other words, incarcerated partners do not always have the right to be present during a divorce.
According to the laws of some states, inmates may only be permitted to attend court hearings when their custody rights are being terminated or their child is being decided. Prisoners do not have a complete right to attend hearing because divorce proceedings do not address either issue. The jailed spouse may, however, ask the court for permission to attend these proceedings.
Depending on the situation, some offenders will be given permission and allowed to attend. However, it is also likely that Zoom, Skype, or any other web conferencing will also be used to have a virtual court session instead.
You can ask for a default judgment against your spouse if they are not granted permission to attend proceedings and they don’t respond in any other way within the allotted 20 days. You may do this on day 61 following the submission of your initial petition. At that time, your attorney can submit a final decree of divorce.
– Granting of the Decree
After divorce hearings, the judge renders a final decision, which is intended to be legally binding.
What Factors Will Affect Divorcing Someone in Prison?
Whether or not your spouse contests the divorce is one of the main factors affecting how tough it will be to get a divorce from someone who is incarcerated. The following points will mention what difference it makes in the process for contested and uncontested divorces.
– Uncontested Divorce
This type of divorce occurs when neither party objects to the terms demanded by the spouse who filed the divorce petition, also called the petitioner. This spouse who was served with the divorce petition is referred to as the respondent.
A “Waiver of Service” can then be prepared by your family law attorney and sent along with a copy of the divorce filing to your spouse who is incarcerated. The “Waiver of Service” is a document that the imprisoned spouse must sign to confirm that they have received the petition and do not wish to receive formal divorce notices, among other things.
The waiver will be filed with the relevant court and the non-imprisoned spouse informed of their court appearance when the imprisoned spouse has signed it and sent it to the other spouse’s attorney. The spouse who is not incarcerated must testify under oath during the court appearance before the divorce can be granted.
– Contested Divorce
A divorce becomes contested if the parties are not in agreement on every matter pertaining to it. If you and your imprisoned spouse are unable to come to an agreement, you may still petition for divorce.
After you petition for divorce, a process server will retrieve the documents from the courtroom and deliver a copy of the original as well as a citation to your imprisoned spouse. The rest of the process is the same as mentioned above.
Do You Need an Attorney to Divorce Your Jailed Spouse?
No, you do not need an attorney to divorce your jailed spouse, but it will be considerably simpler to divorce a prisoner if you hire a lawyer familiar with the required family and divorce laws.
Regardless of the cause, divorces are emotionally difficult. You might be allowed to proceed with your divorce without legal counsel if your spouse won’t fight it and you don’t have a lot of assets or obligations. It can become physically taxing for one spouse to run around getting things ready and appearing in court during a disputed divorce. With a lawyer on one’s side, one can receive insightful legal counsel and be guided throughout the formalities and paperwork of court.
An expert divorce attorney will work to ensure that you have the best possible outcome from the divorce and that the judge takes your wishes into account. Your attorney can represent you during mediation and advise you on essential matters like property distribution and child support, in addition to assisting you with the divorce process.
How Does an Inmate File for Divorce?
The inmate will first prepare the divorce paperwork before trying to acquire assistance from the prison’s legal office by saying that they wish to file divorce papers. They should bring all the necessary documentation, and thereafter make that request.
The inmate should file the paperwork with the legal department of the prison. Along with providing the inmate with verification that the papers were filed, they should also provide the inmate with the necessary paperwork.
Thereafter, the inmate should ask a trustworthy friend or family member to file the necessary papers with the court clerk where they will be getting divorced on their behalf if the prison does not offer a legal services program that handles divorces.
How Does Imprisonment Affect Child Custody?
An essential fact to remember is that you won’t get child support when you divorce your incarcerated spouse. The need for child support is impractical because your ex-wife or ex-husband won’t be earning money while they’re behind bars. You and your family can experience financial hardship as a result.
Custody rights are still intact for detained parents. If certain requirements are not completed, the parent who is incarcerated will not lose custody.
It is typical for divorced parents to divide custody. When there are children involved in a divorce, the custody agreement must be worked out by both parents. While not obligatory, divorced partners are urged to participate in mediation sessions. Because it can be quicker and less expensive than court processes, this path is frequently taken.
Several jurisdictions demand that you must go through a year or two of legal separation before filing for divorce. If you show it to the judge and explain that your spouse has been imprisoned for a longer period of time than the standards for separation, some jurisdictions will let you waive this.
- If you are thinking of divorcing a partner who is in jail, a consent decree will be signed by your spouse and submitted to the court.
- A parent who is behind bars may ask for permission to attend divorce hearings. Additionally, this may lengthen and complicate court proceedings.
- You might have to wait a particular period of time in some places before you can file for divorce.
- In divorce procedures, a prisoner is treated the same as any defendant. But when it comes to informing the spouse about the divorce procedures, there is a significant distinction between inmates and traditional defendants.
- Your greatest option, regardless of whether your spouse is incarcerated or not, is to work with a divorce lawyer who will represent your interests.
Start your divorce process after getting a good understanding of the requirements from this guide. Furthermore, ask for the advice of an experienced divorce lawyer if you face any difficulty during the procedure.
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