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Divorcing when one spouse is imprisoned

For many Virginia couples, marriage is hard enough without adding prison into the mix. When one spouse is imprisoned for committing a crime, getting a divorce can become more complicated, and states have different rules regarding both the grounds and the process for divorce.

As FindLaw explains, some states, like New York, include imprisonment for a specific amount of time as one of the grounds a spouse can use to file for divorce. This means that no reason outside of one spouse being in prison needs to be given to the court when filing for divorce, and this can sometimes be used as grounds for divorce for several years following imprisonment as well. Other states do not specify serving time as a ground for divorce, so the spouse filing for a divorce will need to show a different cause. After filing for divorce, factors including whether or not you have children or property together and if your spouse will try to contest the divorce. An uncontested divorce will proceed normally, with the papers being served and signed in prison. 

For inmates who are hoping to get divorced while in prison, this is a far more difficult process. As The Atlantic reports, many people who are imprisoned do not have access to legal representation for their divorce and are unable to get a court date without appearing at the clerk in person. This prevents the divorce from going forward, and thus the marriage remains intact until they are able to get out. This can have a significant impact on child custody upon re-entering the community, as well as on the ability of a person to be able to start a new life, particularly when 75 percent of female inmates have been in a domestic violence situation.

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