Divorcing Someone Who is in Prison

If your spouse is currently incarcerated, and you want to file for divorce, you should talk with an experienced Boston divorce attorney. There are many issues you have to consider when seeking to end a marriage with someone who cannot freely pick up the phone to call a lawyer or show up to court. 

That does not mean you have to stay married. You can obtain a divorce while your spouse is in prison, you simply need an experienced lawyer to help you navigate the process.

Grounds for Divorce

In Massachusetts, you can file for a no-fault divorce. You do not have to prove your spouse is at fault for the end of the marriage. You simply tell the court that there has been an irretrievable breakdown of the marriage.

In some circumstances, you can argue there are specific grounds for the divorce. Under the Massachusetts General Laws (MGL), Chapter 208, Section 2, a prison sentence of five or more years is grounds for a divorce.

You should talk with a Massachusetts divorce attorney about whether to pursue a fault or no-fault based divorce. Proving fault can be more time-consuming and costly, and it may or may not provide any advantages.

Is Your Divorce Contested or Not?

Whether or not your spouse agrees with the divorce and is on the same page with you in regard to the details, like property division, matters.

If you and your spouse are willing to work out the details of the divorce on your own, then you can file a “1A” uncontested divorce.

However, just because your spouse is incarcerated does not mean they do not have a voice. They may not agree with how you want to divide the marital property, whether or not they owe you alimony, or about child support. If you and your spouse cannot amicably reach an agreement on these issues, then you are facing a “1B” contested divorce.

Serving the Divorce Papers

Once you decide what type of divorce to pursue, you can file the divorce papers in court and serve them on your spouse. Serving someone who is in prison is not complicated, but you need to make sure it is done right. The sheriff’s office or a process server, depending on which service you use, may need to go to the prison and inform the staff that they are serving an inmate with legal documents.

The prison in which your spouse is incarcerated may have a legal coordinator who can advise you on how to properly serve the papers and ensure your husband or wife receives them. In this case, you may be able to mail the documents to a designated individual at the location who will serve the inmate and mail back proof of service.

Incarceration May or May Not Affect the Divorce Proceedings

How much your spouse’s imprisonment impacts the divorce depends largely on them. If they hire an attorney, it may have little effect. Your spouse’s lawyer will communicate with them and address their concerns with your attorney or in court.

Your spouse’s lawyer can appear on their behalf in court. Your husband or wife can request leave to attend the hearings, but their request may be denied. In certain circumstances, your spouse may appear via phone or video conference.

You may experience hurdles if your spouse refuses to hire an attorney, wishes to contest various aspects of the divorce, or employs other delay tactics. However, you have the right to obtain a divorce, and your divorce attorney can take steps to move the proceedings along. 

Child Custody and Child Support

Child custody and child support are often stressful topics in a divorce. When your spouse is incarcerated, they cannot have custody of the child(ren). However, they may request visitation rights, during which you or another adult would be responsible for bringing the child(ren) to the facility. You should talk with your lawyer about whether you believe it is in your child(ren)’s best interests to maintain a relationship with their parent or not during their incarceration.

You can ask the judge to order the other parent to pay child support, but if your spouse is incarcerated, they may be unable to pay. It depends on their assets and if they generate income. Talk with your attorney about your spouse’s financial means and, realistically, if you will be awarded child support and how much.

When your spouse is released from prison, both child custody and support can change.

Talk With a Lawyer Today About Divorcing a Spouse in Prison

You may wonder how the divorce process works if your spouse is incarcerated. In many ways, a divorce can proceed like normal. It helps to have an experienced divorce attorney represent you and guide you through the difficulties associated with your spouse having limited freedom and means of communication. To learn more, contact Infinity Law Group at
(617) 250-8236.