Published March 26, 2019 by Rebecca Wade

Getting a divorce is often a difficult and complex process. But one might assume divorcing a spouse who is serving a jail sentence would be quicker and easier. However, as criminal defense attorney Rebecca Wade explains, that’s not quite the case.

How is divorcing a spouse in jail different from a routine divorce?

Under Virginia Law, incarcerated individuals are considered to be under a disability, which means if any action is filed against them they must be represented by a lawyer called a guardian ad litem. “The guardian ad litem’s job is not necessarily to represent the incarcerated person as if he or she were a divorce attorney,” explains Wade. “Their job is to represent the best interest of the incarcerated person, to make sure they are procedurally protected. So the reality is, it may actually be more difficult to divorce a spouse who is in jail than one who is out of jail.”

What Does Divorcing a Spouse in Jail Involve?

  • Sending a process server to the jail to serve the incarcerated spouse with the divorce papers
  • Asking the court to appoint a guardian ad litem to the incarcerated spouse
  • Waiting while the guardian ad litem meets with the incarcerated spouse
  • The incarcerated spouse possibly filing an answer or response, and possibly contesting the divorce

“You can’t just assume because your spouse is in jail it’s going to be a quick and easy uncontested divorce,” says Wade. There are people in jail with significant assets earned during the marriage. You may still be looking at equitable distribution and custody or visitation issues. On the other hand, the incarcerated spouse could be married to someone with assets and when the spouse files for divorce, the incarcerated person could fight to seek those assets from jail. Also, depending on the reason the spouse is in jail, a fee could possibly be assessed against the divorce filer.

Is it Common For A Spouse In Jail To Try To Prolong Divorce Proceedings?

“I definitely have seen people in jail throw up a lot of obstacles because perhaps they don’t want to be divorced, are angry at their spouse, or blame their spouse for their incarceration. There are all kinds of reasons that a person could try to delay a divorce,” says Wade.

When to Contact an Attorney

Despite the fact that a divorce from a spouse in jail can be difficult, Wade says that’s no reason to not go through with a divorce. “It’s important to consult an experienced divorce attorney and just be aware that the process will be different procedurally and could involve unique challenges.”

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