There’s no doubt the foundations of any marriage can be put to an extreme test when one spouse is incarcerated. And, understandably, both parties may have some difficult situations to face. However, if you’re thinking about filing for divorce against an incarcerated spouse, you certainly can, but it’s not as straightforward as it is often cut out to be.
Divorcing a spouse that’s been in prison for a long time will come with its unique set of challenges and complexities. It’s quite different than getting a traditional divorce. Moreover, keep in mind that you will need to hire the services of an experienced divorce attorney in this niche as they can help you navigate the legalities and formalities required.
Why is Getting a Divorce from an Imprisoned Spouse Difficult?
The reason why divorcing an inmate will come with a set of complications is primarily that your spouse is behind bars. They can’t fully involve themselves in the case. This is why you may have to wait for a considerably longer period to schedule important meetings between you and your spouse.
In these meetings, you will also need to discuss child custody and visitation issues, the division of marital assets, alimony, child support, etc. In addition, your spouse may also lean towards contested divorce if they think they are not being represented enough.
A List of Changes to Expect
Here’s a list of important changes you should expect when you’re filing for divorce against an incarcerated spouse:
- The spouse in prison will have limited access to fully participate in the proceedings during the divorce case. This may potentially make it harder for you to come to an agreeable settlement.
- You may also contend with the possibility that your spouse will bring up additional obstacles when it comes to dividing marital assets, such as a retirement account.
- Child visitation and custody can also be a bit of an issue especially if one parent is incarcerated. However, the circuit court will decide what’s best for the child.
Understanding the Involvement of Legal Guardians During Your Divorce Proceedings
Another vital factor to keep in mind is that the Commonwealth of Virginia labels imprisoned spouses as being disabled. So, this means the incarcerated husband/wife will have the right to a legal guardian ad litem (GAL). This is a court-mandated attorney that presides over the best interests of the incarcerated individual. They will lead the divorce case on your spouse’s behalf and will take decisions based on their best interests.
However, it is equally important to understand that if your spouse opts for a GAL, you may potentially be liable to pay for their legal representation out-of-pocket. But there are some exceptions to this law, such as:
- You won’t have to pay if your spouse was sent to prison after your marriage.
- Your spouse was found guilty of crimes against your kids.
- Facing 12 months or more in prison time.
After the court appoints a GAL for your spouse, only then can the divorce proceedings continue. Moreover, the guardian ad litem will be the point of contact between you, your legal team, and your spouse.
Claiming an At-Fault Case As Grounds for Divorce
Virginia courts also accept at-fault cases. This means that a spouse has the right to cite a valid reason to explain how the marriage is a failure to avoid or steer clear of other legal divorce requirements, for example, living away from the spouse for more than 1 year. In light of this, here are some components that you may be able to use to cite an at-fault case when your spouse is behind bars.
- Your spouse was found guilty of a felony after your marriage with them.
- Your spouse has been sent to prison for 12 months or more than that.
- You stopped living with your spouse after they had been sent to prison.
However, you need to make sure you are eligible for an at-fault case. This is why you should always consult with an experienced divorce attorney.
Informing Your Spouse Who is in Prison
If your spouse is convicted and sent to prison, and you want to file for divorce, this means you will have to inform your incarcerated spouse. However, in most cases, spouses that have been sent to jail sign a waiver of service. This is where the place they are incarcerated steps in.
Some Reasons You Can File for Divorce in Virginia
Cruelty towards your children, domestic abuse, adultery, and convicted felonies that carry a minimum sentence of one year are all reasons you can use to file for an at-fault divorce case. However, if you’ve been living separately from the incarcerated spouse for one year (or six months) if you don’t have a minor kid and have a property settlement agreement, you will not be able to use an at-fault basis.
In addition, if your incarcerated spouse is sent to prison for a minimum of 12 months or more than one year, you have the right to file for a divorce in Virginia. This also means that you potentially have an uncontested divorce because the courts will give your more power compared to the inmate.
Does Your Jailed Spouse Have to Attend Hearings?
In a lot of cases, the incarcerated spouse does have the right to appear for divorce hearings. If they aren’t mandated to attend the meeting based on their incarceration, their legal guardian ad litem will attend the meeting in their stead.
Do Inmates Have to Make Child Support Payments?
If you have children with your spouse (who is now in prison), they may potentially be court-mandated to pay you child support. The court will either ask them to pay the necessary amount using external resources (if your spouse has any) or manage to pay child support from prison.
Bottom Line
So there you have it. A comprehensive guide to understanding the process of divorcing an incarcerated spouse. Although divorcing a spouse who is in prison does come with its list of complex issues, understand that hiring the right divorce attorney will make the ride smoother and easier for you.