How to Divorce an Incarcerated Spouse

There may be no greater strain on marriage than being wed to an incarcerated spouse. Prison is a different world from the one that most of us know, and imprisonment can cause a person to change into someone you barely recognize.

The life of the inmate is not the only one turned upside down when a prison sentence begins. The lives of an inmate’s loved ones are sent into a tailspin as well.

Why Divorce an Incarcerated Spouse?

There are many challenges that come with being married to an incarcerated person. Spouses of inmates often suffer financial difficulty, estranged familial relationships and child-rearing struggles, amongst a host of other issues.

The emotional and psychological toll of a prison marriage can be immeasurable. Loneliness, lack of intimacy and marital estrangement due to incarceration often prove to be more than many spouses can bear.

Even after inmates are released, studies have shown that incarceration has a devastating and prolonged effect on marriages. Couples affected by prior incarceration report less loving relationships, increased violence within the marriage and higher rates of infidelity than those unaffected by incarceration.

Divorce is an Understandable Consequence of Incarceration

Given the myriad complications associated with being married to a convict, it should come as no surprise that many marriages involving an imprisoned spouse ultimately end in divorce. Research has demonstrated that for every year one spouse is imprisoned, the likelihood of divorce increases by approximately 32 percent.

Many spouses feel guilty for considering divorce while a spouse is languishing through prison time. However, ending a traumatic marriage can be in the best interest of the family. In some cases, incarcerated spouses actually encourage divorce due to concerns about the negative impact of imprisonment on the family.

Whatever your situation may be, if you are married to an incarcerated spouse and are considering divorce, know that your reasons are valid. Going through a divorce, in addition to dealing with the challenges associated with your spouse’s imprisonment, may seem overwhelming, but there are options available to you.

Uncontested Divorce of an Imprisoned Spouse

The procedure for divorcing an incarcerated spouse is rather similar to the ordinary divorce process. If you and your spouse agree on all major issues related to ending the marriage, you will be able to complete an uncontested divorce.

An uncontested divorce is simply one where both spouses agree on all terms. Uncontested divorces are often able to be expedited and completed much sooner than contested divorces, which involve one or more disputes on the divorce terms.

Uncontested divorces also typically require less paperwork and cost less to complete than contested divorces. Spouses moving forward with an uncontested divorce are likely to incur lower attorney fees, as well as benefit from fewer court filing fees.

Qualifying for an Uncontested Divorce

To qualify for an uncontested divorce in Texas, certain criteria must be met, including:

• both spouses agree to end the marriage,
• neither spouse disputes child support or child custody,
• the spouses do not have a joint bankruptcy pending,
• no substantial property or assets need to be divided between the spouses, and
• neither spouse is seeking alimony.

Beginning the Uncontested Divorce Process

If you and your spouse meet the uncontested divorce criteria, you may begin the process in Texas if you or your spouse have resided in the state for at least 6 months. Furthermore, either spouse must have lived within the county of filing for at least the last 3 months.

It is advisable to consult with an attorney regarding the specific forms and materials that must be submitted in order to proceed with the divorce. Although the steps to complete an uncontested divorce from an incarcerated individual are not substantially different from the ordinary divorce process, you may still wish to speak with an attorney about your particular situation to see if there are any special considerations that should be made.

After initiating a divorce in Texas, your attorney will advise you of a 60-day waiting period that must be fulfilled before the divorce may be finalized. Once the waiting period has expired, a final hearing before a judge will be required to complete the divorce. This is usually the last step before your divorce decree is finalized to end your marriage to an incarcerated spouse.

Contested Divorce

If your imprisoned spouse does not agree with your decision to divorce or if there are critical disagreements regarding the terms of the divorce, a contested divorce will be necessary. During contested divorce proceedings, a judge or jury will determine the outcome of disputed issues. Common areas of disagreement that may be decided by the court include asset and property allocation, child support, child custody, and spousal support.

The requirements related to residency and waiting periods are the same within uncontested and contested divorces. However, most contested divorces involve additional legal procedures, such as the filing of Temporary Restraining Orders and Discovery, which equate to a more complex and protracted divorce.

Be aware that an incarcerated person has a right to be involved in relevant legal proceedings, including divorce. An imprisoned spouse may request and receive permission to attend divorce hearings. An inmate also may retain the services of an attorney for representation during a divorce.

Temporary Restraining Orders

Within a contested divorce, Temporary Restraining Orders (“TROs”) are frequently filed. TROs provide court-ordered rules related to the conduct of each party during the divorce.

Standard TROs may not apply to an imprisoned spouse. Seeking counsel from a legal professional would be advisable if you need information regarding the regulation of an inmate’s behavior during the divorce process. Also, if your incarcerated spouse is expected to be released while your divorce is pending, an experienced family law attorney can advise you on how to ensure TRO protection as your spouse transitions from the prison system.

Discovery

Discovery is a court-directed process that allows parties to request and exchange information pertaining to the issues being decided within the divorce. Discovery typically takes place soon after temporary orders are filed.

Since the information and materials obtained through discovery will be scrutinized to determine outcomes related to your divorce, completing this process as a layperson is discouraged. Seeking the assistance of a skilled family lawyer is highly advised.

Get Help with Divorcing an Imprisoned Spouse

Divorce can be a complicated matter in ordinary circumstances. When an incarcerated spouse is involved, there is an additional layer of complexity added to the divorce process.

You do not have to face this issue alone. If you are considering divorcing a spouse in prison, consult with a trusted family law attorney. Professional legal advice can be key to achieving your best results.