Divorce Your Spouse In Prison


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. Tommalieh Law can help you in the Chicago area if you wish to divorce your spouse in prison or jail.

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Can I Get Divorced if My Husband is in Jail?

Yes, you can divorce your husband even though he is in prison. No matter if he is in a state or federal facility or if he is in the county jail–you can file for divorce from someone who is serving jail time. 

When you’re divorcing someone who is incarcerated, the process is quite similar to an ordinary divorce. If you and your husband agree on all issues related to ending your marriage, you can file for an uncontested divorce. An uncontested divorce goes quickly because both parties agree on all the terms of a divorce. It requires less paperwork, lower attorney fees, and lower court filing fees. 

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

  • Both spouses must agree to end their marriage
  • Both spouses must agree on child custody and child support terms
  • The parties shouldn’t have a joint bankruptcy pending
  • No significant property or assets need to be split between the spouses, and
  • Neither spouse is seeking spousal support.

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.

divorce your spouse in prison

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:

  • The length of the marriage
  • Either party’s mental and physical state
  • Both party’s income and employability
  • Economic and non-economic contribution of both spouses to the marriage
  • The ability of each spouse to maintain the standard of living they did during the marriage
  • Lost economic opportunities because of the marriage and other relevant factors.

After a dependent spouse is incarcerated, their future employability is negatively affected by the criminal conviction. Upon release from jail, they struggle to find a decent job and may have community service and parole obligations to meet as well. Because an incarcerated spouse may struggle to secure gainful employment and maintain a lifestyle comparable to the marital lifestyle, they may need alimony more than before the incarceration. 

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 support purposes once they complete their jail term.

A spouse being sentenced to prison is one of the many situations a change in circumstances may justify a judgment for spousal support, and family court judges have considerable discretion when making such orders. 

How Does an Incarcerated Spouse File for Divorce?

The first step for incarcerated spouses who wish to file for divorce is the prison law library. There are divorce packets available that will advise an incarcerated spouse on what forms to fill out and who to contact. However, it’s extremely hard to file for divorce while you’re in jail because most inmates don’t have money, and their ability to communicate with people outside prison is limited.

Common forms in an inmate packet include:

  • Petition. The petition states that you’re filing for divorce from your spouse. This form includes the reasons for divorce, and it’s common for the petition to list marital assets you and your spouse share. 
  • Summons. This is a piece of paper your spouse will receive, along with a copy of the divorce petition. The summons informs your spouse how much time they have to respond to the divorce papers.
  • Court information sheet. This document specifies which court is handling your divorce and which family court judge has been assigned to your case.

Also, incarcerated spouses can get help from the prison librarian, and some law schools help inmates with legal problems.

How Do You Get Your Marriage Nullified?

Just like a divorce, a civil annulment ends a marriage; spouses become single again and can remarry. However, an annulment or nullification goes one step further by voiding a marriage, like it never existed. 

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

For the future of your family, you deserve a cost-effective resolution that keeps your future interests at heart. At Tommalieh Law, we have been helping our clients to find solutions for decades. Our experienced and dedicated Chicago divorce attorneys will provide you with exceptional guidance and legal counsel before, during, and after the divorce process. We provide our clients with the compassionate legal counsel they deserve. We know what is at stake and we can help you avoid costly litigation, heated disputes, emotional battles, and unnecessary expenses. 

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

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