Divorce Your Spouse In Prison

Updated on February 8, 2021
Updated: March 30, 2022


If your spouse is currently in jail, and you’re contemplating a divorce, you should talk with an experienced Illinois divorce attorney. There are many things you have to consider if you’re planning to divorce a person who can’t freely pick up the phone to call a divorce attorney or show up in court.

However, this doesn’t mean you should stay married. You can get divorced while your spouse is incarcerated, you only need an experienced divorce lawyer to help you navigate the process.

Can I Get Divorced if My Husband is in Jail?

If your husband is in prison, you can still divorce him. It does not matter where your spouse is serving time or how long they are serving, you still have the right to file for divorce.

When you’re divorcing an incarcerated spouse, the process is not too different from an average divorce. An uncontested divorce is the best option if you and your husband can agree on all the matters related to the dissolution of your marriage. An uncontested divorce is easier to navigate because both parties agree on all the terms of a divorce. It requires less effort, money and time for all parties involved including the divorcees, attorneys, and family court.

The rules of divorce vary from state to state, but uncontested divorce generally requires the following:

  • The ending of the marriage union must be agreed upon by both spouses
  • If children are involved, child support and custody matters must be agreed upon
  • There can be no joint bankruptcy pending for the divorcing parties
  • The property and assets that need to be divided are not of significant value and
  • Alimony, or spousal support, is not being sought by either party

It’s in your best interest to consult a family law attorney when you’re contemplating a divorce, especially when your husband is in jail. There may be special considerations, and a family law lawyer can guide you through all the forms and documents that you must submit to proceed with the divorce.

Also, there’s a possibility of a contested divorce if your incarcerated husband doesn’t agree to the divorce, and it’ll require more money and time. Here, a family court judge will determine the outcome of the disputed family law matters, which center on assets and property division, as well as child custody, child support, and alimony.

Your incarcerated husband has a right to be involved with the legal proceedings, and he will receive permission to attend the divorce hearings. Alternatively, they may be granted a guardian ad litem to attend court hearings on their behalf. 

Even though divorcing a spouse who is in jail is like a regular divorce, you must consult with an attorney so you can learn the specific laws in your state and learn how to proceed.

person in handcuffs about to be released

Do You Have to Pay Alimony to Someone in Jail?

As unpleasant as it may seem, an incarcerated spouse may receive alimony while they’re in jail, or even an increase in the alimony payments. Because of incarceration, the dependent spouses’ financial needs may increase and a family law court may order alimony payments to continue accordingly. 

A family law court considers the following factors when determining alimony payments:

  • How long the couple was married
  • Either party’s health status, including both mental and physical state,
  • Both party’s income and employability
  • Contributions of both spouses to the marriage, including monetary and non-monetary contributions,
  • The ability of each party to continue living life at the standard and quality that they did while married
  • Lost economic opportunities because of the marriage and other relevant factors.

Conviction of and incarceration for a crime will negatively impact that person's life. This negative impact continues after release when attempted to secure employment. Many people have parole or community service obligations after release and this can affect their ability to work. These reasons contribute to the inability of an incarcerated spouse to maintain the quality of life before they were imprisoned and could lead to them being awarded alimony.

Although the incarcerated spouse may not be able to spend the money received from spousal support payments while in prison, that money may be transferred to their bank account, to be used for food, shelter, and other purposes once they complete their jail term.

Normally, an incarcerated individual may not be able to spend alimony while serving time. However, they may save this money to be used upon release for things like food, housing, transportation, and other basic needs.

Being sentenced to prison is considered a change in circumstances by most family courts. There are many factors that must be considered when making a judgement for spousal support. An experienced family law attorney can help guide you and ensure that your best interests are protected while navigating this complex process.

How Does an Incarcerated Spouse File for Divorce?

There are resources available to inmates that will help them navigate the divorce process while they are on the inside. Nearly every prison or detention center has a law library that will have the necessary information and forms needed to begin the divorce process. Lack of money and ability to communicate are obstacles that inmates will have to face when pursuing a divorce.

The forms needed that you can find in the law library should include:

  • Petition. This states that you are filing for divorce and includes the reasons for divorce. You may list any shared marital assets here that will need to be considered in the divorce.
  • Summons. This is the form that will be used to serve your spouse, notifying them that you are filing for divorce.
  • Court information sheet. This information is related to the divorce case including the family court and judge that are hearing your case.

Many family law firms will help an incarcerated individual pursue a divorce. Tommalieh Law knows exactly how to handle these situations.

How Do You Get Your Marriage Nullified?

Similar to a divorce, an annulment ends a marriage and spouses are single again. An annulment also voids a marriage as if it never happened.

To get your marriage nullified, you must prove your marriage is “voidable,” meaning your marriage was valid but should be nullified based on one of the following reasons:

  • Unsound mind. You or your spouse couldn’t give consent to the marriage because of mental impairment or the influence of alcohol or drugs. Also, a family court judge may nullify your marriage if either you or your spouse lacked the mental capacity to consent to the marriage. 
  • Force or coercion. One spouse was forced or coerced into the marriage.
  • Fraud. Your spouse made false statements, and you agreed to marry them based on a belief that the statements were true.
  • A physical impairment, which includes sexual impotence that prevented you and your spouse from consummating your marriage.

However, if you knew about your spouse’s impotence before you married them, you can’t use that as a ground to nullify your marriage.

Tommalieh Law Can Help You Divorce Your Spouse In Prison

Divorces are never an easy process to go through for any reason. If you or your spouse is incarcerated, the process can become a whole new level of complex. The team at Tommalieh Law has been helping individuals navigate complex divorce cases for years. We provide high-quality legal services at very competitive rates. Our experienced and dedicated attorneys will do everything in their power to help you find the best solution for your situation. We ensure that you avoid any unnecessary emotional distress and expenses from start to finish. We are here to help!

To schedule a free initial consultation, call us today at (708) 232-0017, or contact us online to learn how we can help. 

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