Filing for divorce often presents challenges, especially when your spouse is in prison. If you need to understand the relevant legal procedures or develop effective communication strategies, a qualified attorney at the Atlanta Divorce Law Group can guide you through the process successfully.
Our team handles these complexities directly and works with prison administration to serve incarcerated individuals and address related matters. This article explores how to navigate divorce when a spouse is incarcerated and highlights how our experienced family lawyers manage these cases with clarity and precision.
Can You Get Divorced if Your Spouse Is Incarcerated?
You can get divorced even if the state has incarcerated your spouse in a different jurisdiction. However, the process may involve added complexity, so you should understand your legal options and anticipate potential issues.
If your partner committed a serious crime and received a lengthy prison sentence, pursuing a fresh start is reasonable. Be aware that matters such as property division and child custody may require more detailed negotiation than in a traditional divorce. Our attorneys offer insight on navigating divorce with an incarcerated spouse, helping you manage the legal and procedural challenges unique to these cases.
Do You Need a Reason To Divorce an Incarcerated Spouse?
Because Georgia is a no-fault state, you do not need to prove that your spouse did something wrong to file for divorce. Even if you have a valid reason for wanting to leave your partner, especially if they are a violent offender, the state’s family court does not require proof of fault. As the petitioner, you must affirm that the marriage is irrevocably broken, without referencing the criminal sentence or offense as a determining factor. This approach offers clarity for individuals seeking guidance on ways to separate during a spouse’s incarceration, without needing to engage in adversarial legal claims.
However, if you believe your spouse may not agree to the divorce, you may wish to cite another ground for divorce in addition to or instead of irreconcilable differences. The laws in Georgia and some other states will grant you a divorce if your spouse’s incarceration meets certain criteria. You would only need to prove your spouse’s conviction and sentence to be granted a divorce.
For example, the Official Code of Georgia § 19-5-3 says you are entitled to a divorce if your spouse was convicted of a crime of moral turpitude and sentenced to prison for two years or longer. Many other states have similar laws. Speak with your divorce attorney about whether citing a fault-based ground might be advantageous in your specific case.
Steps to Take & Important Considerations
In any divorce, a couple must divide their property and debt and make custody arrangements for their children. Even when your spouse is incarcerated, you still must resolve these issues before a family court will grant a divorce.
A divorce that might be straightforward and simple if you and your spouse are both free can become quite complicated if one of you is incarcerated. It is always best to work with an experienced divorce attorney when you are trying to dissolve your marriage to an inmate.
Strive for an Uncontested Divorce
If you remain in touch with your incarcerated spouse and are able to communicate constructively, negotiating an uncontested divorce is preferable. You and your spouse must agree that your marriage is irretrievably broken and resolve other outstanding issues. You submit the settlement paperwork to the family court judge and could have your divorce within a few weeks.
If your spouse contests the divorce, you will need to follow a schedule set by the court for the production of documents. If you cannot reach an agreement on property division or custody, you present your arguments to a family court judge who makes the decision.
Property Division
If you own property together, you will need to divide it fairly according to the laws in your jurisdiction. Most states, including Georgia, use some form of equitable distribution to divide property. This means that each spouse should get a fair, but not necessarily equal, share of the joint property. Other states use a community property model, which means that each spouse has an equal interest in everything the couple owns.
If some of the marital property was acquired through criminal activity, it could be seized as a penalty for your spouse’s crimes or to pay restitution to the victims. Your divorce lawyer can work to protect you from being denied your property rights due to your spouse’s crimes. On the other hand, you may be entitled to a larger share of the marital property if your spouse’s criminal activities negatively impacted the marital assets.
Child Custody
An incarcerated parent cannot have physical custody of their children. However, they could retain the right to make decisions for the child, which is commonly called legal custody. You and your incarcerated spouse would need to have a cooperative relationship and the ability to communicate effectively in order for a court to allow an incarcerated parent to retain legal custody.
Even if you are willing to share legal custody with your spouse, a court could determine that doing so is not in your children’s best interests. Courts prioritize stability for children when their parents divorce. The incarcerated parent would need to demonstrate to a family court judge’s satisfaction that they are willing and able to maintain their relationship with their children, despite being imprisoned.
Regarding visitation, most prisons can accommodate visits between prisoners and children. Periodic visitation could be possible if a family court judge determines that contact between the parent and child in that setting serves the children’s best interests.
Following Prison Procedures in a Divorce
One of the most important factors in separating from an incarcerated spouse in Georgia is following prison procedures. These often confusing rules and regulations serve to protect both parties throughout the divorce process. Our attorneys understand the specific laws governing process service in correctional facilities.
After preparing your Complaint for Divorce, we work directly with prison officials to serve your spouse. Your partner then has 30 days to submit a written response. If they do not respond, your attorney can request that a family court judge issue a default judgment.
Consult a Divorce Attorney To Understand How to Proceed in Divorcing Your Incarcerated Spouse
If you are wondering how to navigate divorce when a spouse is incarcerated, we recommend you reach out to our team for a free consultation. Atlanta Divorce Law Group ranks among the leading family law firms and will prioritize the needs of you and your children.
Our experienced legal advisors do not recommend trying to manage this complicated process alone. If your incarcerated spouse contests the divorce, our attorneys attend every family court hearing to support your case and guide it to resolution. Contact our dedicated team today and schedule a free consultation to discuss your case.
