Divorcing Someone Who’s in Prison? What You Need to Know

Every divorce comes with unique challenges, but some are more complicated than others. Divorcing a spouse who is in prison is one of the most complex divorce situations of all. Contact with an incarcerated spouse is limited, and they aren’t free to attend court hearings and mediation sessions.

It’s possible to successfully navigate this complicated process and finalize the divorce despite the many obstacles standing in your way. If you’re ready for a divorce but your spouse is in prison, here’s what you need to know:

Agreement Makes a Big Difference

There are two basic types of divorce — contested and uncontested.

An uncontested divorce is one in which both spouses agree to the divorce and the terms contained in the divorce papers. When there is mutual agreement over a divorce and its terms, the divorce process moves forward with relative ease.

When the divorce is contested, it’s always more difficult and drawn out. A contested divorce with an incarcerated spouse is even more complicated. The incarcerated spouse will need to provide reasons for contesting the divorce. These are often objections to a proposed child custody agreement or asset distribution.

In a contested divorce, spouses normally attend mediation hearings to see if they can come to an agreement. When this fails, the divorce will go to court for a ruling.

Longer Wait Times Are Likely

When someone is incarcerated, they still retain certain rights. One of these is the right to participate in legal proceedings like divorce hearings.

If your divorce is contested and it is necessary to go to court, a spouse in prison can request leave to attend the divorce hearing.

However, requesting prison leave time can be difficult and time-consuming. This is especially true for an issue like divorce, which is not considered to be as time-sensitive as other reasons for requesting leave.

You’ll probably deal with longer wait times and delays as your spouse attempts to align prison leaves with divorce hearings.

Children Complicate the Process

A divorce involving children is always more complicated. An incarcerated parent still has parental rights. The imprisoned parent will not lose custody unless certain conditions are met.

For divorcing parents, it is common to share custody. When a divorce involves children, both parents must attempt to agree upon a custody arrangement. Divorcing spouses are encouraged but not required to attend mediation sessions. This route is often chosen because it can be faster and less expensive than court proceedings.

An incarcerated parent can request leave to attend custody hearings. This can also increase the length and complexity of legal proceedings. Once they’re released from prison, you’ll likely face further challenges, like requested changes to any custody agreement you have established.

Gucciardo Family Law Can Help

If you’re attempting to navigate the process of divorcing someone in prison, Gucciardo Family Law can help by advising you of your options and how to proceed.

It’s important to protect yourself during a divorce. The terms of your marital settlement agreement can impact you for the rest of your life. Schedule a free consultation with an experienced divorce attorney by calling Gucciardo Family Law today.