How to File for Divorce If Your Spouse Is in Jail

Cole Mayer
A lawyer meets with his female client, wearing an orange jumpsuit, in the jail.

Table of Contents

Divorcing an Incarcerated Spouse

Divorce is difficult, especially so when you or the other person is incarcerated. Still, you have rights to divorce if your spouse goes to jail, as most states see this as a qualified reason for divorce. While it’s a common misconception that the divorce can be free, you may be able to have fees waived. This is highly dependent on your situation, and how willing your incarcerated spouse is to divorce amicably.

Can I Get a Divorce for Free?

Unfortunately, it’s a common misconception that, just because your spouse is incarcerated and now has a criminal record, you can get a divorce for free. The divorce will still cost you. In fact, it might cost you more, depending on your state’s laws.

If your state requires your incarcerated spouse to have a guardian at litem, or GAL, to represent them in court, you may have to end up paying their fees. Some exceptions may exist, but this depends on the type of crime your spouse committed. In that case, a GAL may still be required, but you would not have to pay the bill.  

How to Divorce an Inmate for Free

If your case does not require a GAL, or you do not have to pay the bill, the other costs for a divorce are for your own lawyer, if any, and filing paperwork — though it is possible to cut down on costs. You can also hire a server, such as the local Sheriff’s Office or a professional server, to serve the divorce papers on your behalf, or you can visit your spouse in jail and serve them yourself.

Seek Legal Advice

Your first order of business is to seek local legal advice. Consult an attorney if you can, or speak with the clerk at the family court for your jurisdiction, especially if you are handling the proceedings yourself.

Forms or necessary information requirements may be different for your jurisdiction, and clerks will be able to tell you what you will need to proceed with a divorce. Criminal court clerks can also help you obtain any documents pertaining to your spouse’s incarceration that you might need.

Also check to see if a dissolution or annulment may be a better option, depending on your situation and whether you meet the necessary requirements for either one.

Check State Laws

The court clerk, if you have visited them already, may have helped you out with this. State and local jurisdiction laws dictate what paperwork is required, and what documents you need to file alongside the paperwork. At this stage, be sure to double-check the state laws, obtain any paperwork from the courts that you might need, and collect all the documents you might need to submit.

File the Paperwork

Next, file the paperwork. You will need to serve your spouse with the documents, which might prove difficult as they are incarcerated. Find out if the court will serve the incarcerated party the paperwork.

If you have to serve the divorce papers, consider hiring the local sheriff’s office to do so, or mail by certified mail. The documents will likely have to go through an official at the prison, and if you use the Sheriff’s Office or a private server, they may already know who to submit the paperwork to. You will need proof of service, which should be provided if you use a private server or the Sheriff’s Office, or filled out by you, which must be submitted to the court.

Generally, you will need to file three forms. The divorce petition, a summons for your spouse, and a court information sheet.

There is one final form you may sign, depending on your situation, which will cut down on costs. You can submit an affidavit or indigent waiver if you cannot pay for the filing fee.

From here, the divorce will likely play out fairly similarly to how a normal divorce would. While your spouse has a right to be in the hearings, they most likely won’t be, as incarceration often overrides that right. In their stead, they may have a lawyer, if they can afford one, or they may appear by phone if able. If the divorce is not contested, there may not be many other hearings. There may be a hearing to divide assets per state law, or a hearing to determine custody of children. Otherwise, it’s mostly a waiting game for the divorce to be finalized.

How to File for Divorce While Incarcerated

The prison library usually has all the forms you will need to file for divorce while incarcerated. Free help should also be available; ask your librarian for the resources you will need. Be sure to ask for a filing fee waiver or indigent affidavit form, as the fee will likely be waived due to your incarceration.

Bring all of you papers to the prison’s legal service, and they should be able to file all of your paperwork. You will still need to arrange for someone to serve your spouse the summons and a copy of the petition. The prison’s legal service may again be able to help, but if not, you will need to arrange for service. If you wait until you are released, many of these options go away, and you’ll have to file for a divorce normally.

Inmate Divorce Rights

You may not be able to attend the divorce hearings while you are incarcerated, but you can hire an attorney and have them attend hearings for you. You may also be able to be present via phone. In some states, you may have a GAL.

Divorcing an incarcerated inmate is not much different from a normal divorce; one party just might not be at the hearings. Unlike some common perceptions, divorcing an inmate is not free. Some fees may be waived if you are unable to pay for them, but otherwise it still costs to file paperwork or hire an attorney.

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