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How to Divorce a Spouse in Jail or Prison

By Ephrat Livni, Esq. on June 01, 2016 | Last updated on March 21, 2019

You get married and promise yourself to someone forever without knowing quite what that means. But when your spouse is arrested for a crime, charged, convicted, and imprisoned, then maybe you rethink your original plan and you decide to divorce. What impact will your spouse's incarceration have on the process?

Well, that depends. State divorce statutes vary and different locales have different grounds for divorce, as well as distinct processes for terminating a marriage. Let's look at some examples.

East Coast Split

Say, for example, you are married in New York, your spouse is then imprisoned, and you want a divorce. The state sets out various grounds for divorce, seven specifically, one of which is imprisonment for three or more years in a row. According to the state court website:

To use [the imprisonment] ground, the spouse must have been in prison for 3 or more years in a row. The spouse must have been put into prison after the marriage began. The Plaintiff can use this ground while the spouse is in prison or up to 5 years after the spouse was released from prison.

The statute indicates then that having a spouse in jail on a misdemeanor conviction (punishable by up to a year in jail, as opposed to a felony which is punishable by a year or more in prison) will not suffice on its own as a ground for divorce. But there are other grounds, so you don't have to wish a long sentence on your spouse just because you want out of the marriage now.

West Coast Split

If you want to divorce in California, there are only two grounds for divorce outlined but one of them should work for an incarcerated spouse. The state provides for divorce based on irreconcilable differences, "which have caused the irremediable breakdown of the marriage." There is a mandatory six-month waiting period before a divorce can be finalized, which applies to all marriages.


Whatever state you are in, you should be able to divorce a spouse who is in jail or prison. But the procedure will depend on a lot of factors, including state divorce process law, your spouse's willingness to participate, and the extent to which your union is complicated by children and property and the like.

The process for divorcing an inmate will depend in great part on the willingness of your spouse to get divorced. If the inmate has no objection to splitting, then you can have divorce papers served in jail, prison or at a court appearance, for example. If your spouse is reluctant you would follow the procedure required for a contested divorce under those circumstances. Talk to a lawyer before you start filing papers with the courts.

Consult With Counsel

If you are considering a divorce, whether from an inmate or anyone else, speak to a lawyer and tell your story. Get specific guidance based on your situation. Many divorce attorneys consult for free or a minimal fee and will be happy to talk.

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