There are two manners in which one can obtain a divorce from an imprisoned individual.
First, you may obtain a divorce from an incarcerated individual through an uncontested divorce.
To obtain an uncontested divorce, you and your spouse would have to be in agreement with respect to getting divorced and to all related terms. If you and your spouse only have property and/or debt, you will have to be in agreement as to how those items get divided in the divorce. If you and your spouse have children, you will have to be in agreement as to conservatorship, possession and access, child support, and medical support. If you and your spouse have reached an agreement as to all of the above that apply to your situation, then you can proceed with an uncontested divorce.
In the process of an uncontested divorce, our office would be retained by you and would only represent you during the process and your spouse would have to be agreeable to not hiring his or her own attorney. He or she may still obtain legal advice by taking a copy of the decree drafted by our office to another attorney for review before signing.
Once retained by you, our office would file a petition for divorce on your behalf. After the petition was filed by our office, we would draft a document entitled “Waiver of Service” to be sent to your incarcerated spouse along with a copy of the filed petition for divorce. The Waiver of Service is a document that is signed by your spouse that indicates the he or she has received the petition and does not want to be served with formal notice of the divorce, among other things. The Waiver of Notice and the Petition can be mailed to your incarcerated spouse. Normally, a Waiver of Notice must be signed by the individual and notarized. However, effective September 1, 2015, the requirement that the waiver must be signed before a notary public does not apply if the party executing the waiver is incarcerated.
Once your incarcerated spouse has signed and returned the waiver, our office will prepare an Agreed Divorce Decree based on the agreement you have reached with your spouse. After you have approved the decree, you can forward the decree to your spouse for signature.
After you and your spouse have signed on the final decree, we will file it with the appropriate court along with all necessary supporting documents and coordinate your court appearance for a date more than sixty days after your original petition was filed. The Court appearance will be first thing in the morning in front of the Judge and will entail you answering questions under oath about your marriage, your residency, and your agreement with your spouse. At that hearing, the Court will grant your divorce.
Second, you may obtain a divorce from your incarcerated spouse through a contested divorce.
If you cannot reach an agreement with your spouse, you may still file for divorce. As with the uncontested process, we would draft and file a petition for divorce on your behalf.
After the petition is filed, he or she would have to be personally served with the citation. If you are unable to have him or her personally served at the place where he is incarcerated, you will have to file a motion for alternative service to have the court allow you to serve your spouse by substituted or alternative service. If the Court grants substituted or alternative service, then you can proceed with service as ordered by the court.
Once your spouse has been served with the petition, he or she has until the Monday after the expiration of twenty days to file an answer with the court. If your spouse files an answer, our office can begin the contested process by either sending a proposal or attempting to coordinate mediation. If your spouse does not answer, even after the sixty-day waiting period has expired, you can appear before the Court and obtain a default divorce by having a hearing.