Divorcing an Incarcerated Spouse: Your Rights and How to File
If your spouse is in prison or jail and you want a divorce, you have every right to move forward. The process is different from a typical divorce — but it is absolutely possible. You do not need your spouse's permission, and incarceration does not protect them from being served. Here is everything you need to know.
You Have Every Right to Divorce
Let this be clear from the start: incarceration does not prevent divorce. Your spouse being in prison does not freeze your marriage, and you do not need to wait until they are released. Every state in the U.S. allows you to file for divorce while your spouse is incarcerated.
Many people feel trapped — wondering if the legal system will make them wait, or if their incarcerated spouse can somehow block the process. The answer is no. Courts handle thousands of these cases every year. The process may require extra steps, but it will move forward.
Important to know
You are not abandoning your spouse by filing for divorce. You are making a decision about your own life, your safety, and your future. There is no legal or moral obligation to stay married to someone who is incarcerated. An estimated 500,000 marriages in the U.S. involve an incarcerated spouse, and divorce in this situation is far more common than most people realize.
Serving Divorce Papers in Prison or Jail
The biggest procedural difference in divorcing an incarcerated spouse is how you serve the papers. You cannot simply hand-deliver them. Instead, you will need to use one of these methods:
Service through the warden
Many states allow service of process through the warden or facility administrator. The papers are delivered to the warden, who then delivers them to the inmate. This is often the most reliable method. Contact the correctional facility's legal services department to confirm their process.
Certified mail
Most facilities accept legal documents via certified mail with return receipt requested. Send the papers to the inmate at the facility's address. The signed return receipt serves as proof of delivery. Some states require this to be sent to both the inmate and the warden.
Process server visiting the facility
A professional process server can visit the correctional facility to serve the papers in person. This requires advance coordination with the facility — most prisons require scheduling a legal visit. This method provides the strongest proof of service.
Service by publication
If you genuinely cannot locate your spouse or they have been transferred and you cannot find their current facility, some courts allow service by publication — publishing a legal notice in a newspaper. This is a last resort and requires court approval.
Tip: Use your state's Department of Corrections inmate locator (available online for most states) to confirm your spouse's current facility and inmate number before serving papers.
Their Right to Respond
An incarcerated spouse has the same right to respond to divorce papers as anyone else — typically 20 to 30 days, depending on the state. However, the way they participate in court proceedings is different.
- ✓Written responses — the incarcerated spouse can file written declarations and motions from the facility
- ✓Phone appearances — many courts allow telephonic appearances for incarcerated parties
- ✓Video conference — increasingly common, especially since 2020, courts may allow video participation
- ✓Attorney representation — the incarcerated spouse can hire an attorney to appear on their behalf
- ✓Court-appointed transport — in rare cases involving contested custody or complex assets, courts may order the facility to transport the inmate to court
Courts generally try to accommodate incarcerated respondents rather than denying them participation entirely. This is to protect against appeals later. However, the process will not stall indefinitely waiting for the incarcerated spouse to cooperate.
Default Judgment If They Don't Respond
If your incarcerated spouse does not respond to the divorce papers within the required timeframe, you can request a default judgment. This means the court proceeds without their input and typically grants the divorce on your terms.
What a default judgment means for you
When a default judgment is granted, the court makes decisions about property division, custody, and support based on the information you provide. The incarcerated spouse effectively waives their right to contest. This can actually speed up your divorce significantly — but you must prove that service was properly completed.
Some inmates fail to respond because they do not understand the consequences, cannot access legal resources, or simply choose not to engage. Whatever the reason, the divorce will proceed.
When Incarceration Is Grounds for Divorce
Many states recognize incarceration or a felony conviction as specific grounds for fault-based divorce. This can affect property division and spousal support in your favor. However, the requirements vary significantly by state:
Minimum sentence length
Some states require the incarcerated spouse to have been sentenced to a minimum number of years — commonly 1 to 3 years — before incarceration qualifies as fault grounds. For example, New York requires a sentence of 3 or more consecutive years.
Conviction during the marriage
Some states require that the felony conviction occurred during the marriage, not before. A conviction that predates the marriage may not qualify as grounds, even if the incarceration continues after the wedding.
Type of crime
A handful of states distinguish between felonies and misdemeanors, or between violent and nonviolent offenses. Felony convictions carry more weight as divorce grounds. Crimes against the spouse or children (domestic violence, child abuse) are treated with particular seriousness.
No-fault alternative
In every state, you can file for no-fault divorce based on irreconcilable differences or irretrievable breakdown of the marriage — regardless of the reason for the incarceration. You do not need to prove fault if you do not want to.
How Incarceration Affects Child Custody
This is often the most complex and emotional part of divorcing an incarcerated spouse. Courts will always prioritize the best interest of the child, and incarceration has a significant impact on custody determinations.
- •Physical custody — an incarcerated parent cannot have physical custody. The non-incarcerated parent will typically receive sole physical custody during the period of incarceration.
- •Legal custody — this is less automatic. Some courts allow incarcerated parents to retain joint legal custody (decision-making about education, healthcare, religion), especially for nonviolent offenses. Others award sole legal custody to the non-incarcerated parent.
- •Parental rights are not automatically terminated — incarceration alone does not end a parent's rights. Termination of parental rights (TPR) is a separate, extreme legal action that requires additional grounds, such as abandonment, abuse, or extreme neglect.
- •Nature of the crime matters — a parent convicted of drug possession will be treated very differently than one convicted of child abuse or domestic violence. Courts consider the specific offense when making custody decisions.
Under the Adoption and Safe Families Act (ASFA), if a child has been in foster care for 15 of the most recent 22 months, the state may move to terminate parental rights. This is relevant if the incarcerated parent was the sole custodian before arrest and the child entered the foster system.
Children's Visitation with an Incarcerated Parent
This is a deeply personal decision that depends on the child's age, the nature of the crime, and the child's own wishes. Research consistently shows that maintaining a relationship with an incarcerated parent can benefit children — when it is safe to do so.
Court-ordered visitation
Courts may include visitation provisions in the custody order. This can include in-person visits at the facility, phone calls, video visits, or letters. The frequency and type depend on the facility's rules and the court's determination of the child's best interest.
When visitation may be denied
If the incarcerated parent was convicted of a crime against the child, domestic violence witnessed by the child, or sexual offenses, courts will typically deny or severely restrict contact. The child's safety always comes first.
Child-friendly visitation programs
Some facilities offer programs specifically designed for children — with play areas, less intimidating environments, and trained staff. Organizations like the Osborne Association and Sesame Street's “Little Children, Big Challenges: Incarceration” program provide resources to help children cope.
Protective Orders and Safety
If your spouse's incarceration is related to domestic violence, threats, or crimes against you or your children, a protective order remains critically important — even while they are behind bars.
Why you need a protective order even during incarceration
Inmates can still make phone calls, send letters, and communicate through third parties. A protective order prohibits all contact and creates legal consequences if violated. It also establishes a documented history of danger that is essential for custody proceedings and for your protection upon their release.
Request that the protective order remain in effect beyond the release date. Many protective orders can be extended or made permanent. This is your legal foundation for safety planning.
Impact on Property Division
Incarceration can affect property division in several ways, though the specific impact depends on your state's laws and whether you file on fault or no-fault grounds.
- •Marital waste — if your spouse's criminal activity depleted marital assets (legal fees, fines, restitution, forfeiture), courts may account for this as dissipation of marital assets and award you a larger share.
- •Fault-based advantages — in states that consider fault in property division, a felony conviction can tip the balance in your favor. The court may award you a disproportionately larger share of marital property.
- •Inability to manage property — an incarcerated spouse cannot manage real estate, businesses, or investments. Courts may award you the marital home or other assets that require active management.
- •Restitution and civil liability — if your spouse owes restitution to victims or faces civil lawsuits related to their crime, this can reduce the marital estate. Understanding these obligations is essential before negotiating a settlement.
Child Support from an Incarcerated Parent
Child support is one of the most frustrating aspects of divorcing an incarcerated spouse. The obligation exists, but the ability to pay is severely limited.
The obligation does not stop
Courts can and do order child support from incarcerated parents. The amount may be set at minimum levels or based on imputed income (what the person could earn if not incarcerated). In some states, like the Turner v. Rogers Supreme Court decision (2011), courts must consider ability to pay before finding contempt for nonpayment.
Arrears accumulate
If child support is ordered and not paid, the debt (arrears) accumulates. When the incarcerated parent is released, they will owe the full amount. Some states allow modification of support during incarceration, but others do not — check your state's specific rules.
Prison wages
Some inmates earn small wages through prison work programs (typically $0.14 to $1.41 per hour). Courts in some states can order a portion of these wages garnished for child support, though the amounts are minimal.
Alternative support sources
Explore public assistance programs (TANF, SNAP, Medicaid, WIC), child support enforcement agencies, and community resources. You may also be eligible for Social Security benefits for your children if the incarcerated parent previously worked and paid into the system.
Safety Considerations and Release Date Planning
If your spouse's incarceration involves domestic violence or threats against you, their eventual release is something you must plan for well in advance.
- 1.Register for victim notification. Every state has a Victim Notification System (often called VINE — Victim Information and Notification Everyday). Register at VINELink.com to receive automatic alerts about your spouse's custody status, transfer, release, or escape.
- 2.Secure a long-term protective order. File for a permanent or extended protective order before the release date. Ensure it covers you, your children, your home, your workplace, and your children's school.
- 3.Create a safety plan. Work with a domestic violence advocate to develop a detailed safety plan for when your spouse is released. This includes safe housing, emergency contacts, code words with neighbors, and a go-bag ready at all times.
- 4.Request release conditions. Ask the prosecutor or parole board to include conditions of release that protect you — such as geographic restrictions, no-contact orders, GPS monitoring, and mandatory substance abuse treatment.
- 5.Relocate if necessary. If the threat is severe, consider relocating before the release date. Some states have address confidentiality programs for domestic violence survivors that keep your new address hidden from public records.
Stigma and Emotional Complexity
Divorcing an incarcerated spouse carries a unique emotional weight that people outside this situation rarely understand. You may be dealing with:
- •Guilt — feeling like you are abandoning someone at their lowest point
- •Shame — the stigma of having a spouse in prison and the judgment from family, friends, and community
- •Grief — mourning the person you married and the life you expected to have
- •Fear — concern about retaliation, release, or your spouse's connections outside the facility
- •Conflicting pressure — your spouse's family may pressure you to “stand by” them, especially if they are minimizing the crime
- •Children's emotions — your children may have complicated feelings about their incarcerated parent, and your decision to divorce adds another layer
All of these feelings are valid. There is no “right” way to feel. Therapy — both individual and for your children — is strongly recommended. Look for therapists who specialize in families affected by incarceration, as the dynamics are distinct from a typical divorce.
Re-entry Planning and Custody Modifications
When an incarcerated parent is released, custody arrangements established during the divorce may need to be revisited. This is normal — and the law accounts for it.
The released parent can petition for modification
A released parent can file a motion to modify custody or visitation based on a “material change in circumstances” — their release from prison qualifies. However, they bear the burden of proving that modification is in the child's best interest.
Courts proceed cautiously
Judges do not automatically restore custody or unsupervised visitation upon release. Courts typically require the parent to demonstrate stable housing, employment, completion of any court-ordered programs (substance abuse, anger management, parenting classes), and a period of consistent, responsible behavior.
Graduated visitation
Courts often start with supervised visitation and gradually increase contact as the parent demonstrates stability. This protects children from disruption while allowing the parent-child relationship to be rebuilt at an appropriate pace.
Prepare in advance. If you know your ex-spouse's release date is approaching, consult with your attorney about preemptively updating your custody order to include specific conditions for any future modification requests.
Resources for Families Affected by Incarceration
You are not alone. These organizations provide support specifically for families navigating incarceration:
- •National Domestic Violence Hotline — 1-800-799-7233 — if domestic violence is part of your situation
- •VINE (Victim Information and Notification Everyday) — VINELink.com — automated notifications about offender custody status
- •Osborne Association — programs for children and families of incarcerated people, including visiting support
- •Sesame Street “Little Children, Big Challenges: Incarceration” — free resources for explaining a parent's incarceration to young children
- •Legal Services Corporation (LSC) — LawHelp.org — find free or low-cost legal help in your area
- •Prison Fellowship — family support programs and re-entry resources
- •National Institute of Corrections — nicic.gov — information on family visitation programs and policies
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Legal Disclaimer: This article is for informational purposes only and does not constitute legal advice. Laws regarding divorce, custody, and incarceration vary significantly by state. The information above provides general guidance but your specific situation may differ.
Always consult with a licensed family law attorney in your state for advice specific to your circumstances. If you are in immediate danger, call 911. For crisis support, contact the National Domestic Violence Hotline at 1-800-799-7233.