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Divorce can be a challenging and painful process, even more so if someone in the relationship has been imprisoned. If you need to know how to divorce someone in prison, read on for more information. To schedule a consultation with one of our family law attorneys who can help guide you through the process of divorcing someone in prison, please contact us today.

There are two manners in which one can obtain a divorce from an imprisoned individual:

1. 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.

2. Obtain a divorce from your incarcerated spouse through a contested divorce.

How can you divorce someone in prison if you cannot come to an agreement? 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.

Schedule a Consultation Today

We understand that divorcing someone in prison is difficult situation, and the process itself can be frustrating and confusing. If you are interesting in learning more about how to divorce someone in prison, consider scheduling a consultation with one of our experienced Texas family law attorneys today. You can contact us online, or call our offices at [insert phone number].

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After a divorce, getting your life back on track can be a challenging process, especially if you’re trying to move out of state and navigate a custody agreement. Before you move out of state with your kids, read our blog to learn more about the process to ensure that you are operating within Texas family law.

If you still have questions, or would like to schedule a consultation with one of our attorneys to help you work through this process, please contact us today.

Moving Out of State with Custody and an Agreeable Spouse

First and foremost, if your spouse is agreeable to you relocating to another state with your kids, then you will be free to do. The divorce decree would have to specify that you are the conservator with the exclusive right to determine the primary residence without regard to geographic location or within a certain geographic area that includes the area to which you would like to relocate.

Please keep in mind that an agreement with your spouse could include a geographic restriction that includes more than one place. For example, you could agree to a geographic restriction that says that you have the right to establish the child’s residence within Houston (Harris and its contiguous counties) and/or your hometown.

Can I Move if My Spouse Is Not Agreeable?

If your spouse is not agreeable, it is likely that your ability to move could be restricted to a geographical area.

Section 153.001(a) of the Texas Family Code states:

The public policy of this state is to:

  1. assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
  2. provide a safe, stable, and nonviolent environment for the child; and
  3. encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

When rendering an order appointing parents as joint managing conservators, the court shall designate on conservator as the one the has the exclusive right to determine the primary residence of the child. Additionally, the court shall specify either the geographic area within which that conservator can establish the child’s primary residence or that the conservator can establish the child’s primary residence without regard to geographic area.

Factors the Court May Consider

The Texas Family Code does not explicitly state the factors a trial court should consider in deciding whether a geographic restriction would be in the best interest of the child. However, there are a number of things that courts have looked at in the past, including, but not limited to the following:

Reasons for and against the move

  • The opportunities afforded by the move
  • Whether the move could assist in meeting the child’s special needs or unique talents
  • The effect of move on relationships with extended family
  • The effect on the noncustodial parent’s visitation and communication with the child
  • The child’s age
  • The noncustodial parent’s ability to relocate

Also, it is important to note that even if you are appointed as sole managing conservator of your child the court still can restrict the ability to designate the primary residence of the child. Although the section of the Texas Family Code that deals with the appointment of the rights and duties of a parent who is appointed sole managing conservator does not specifically mention a geographic restriction, it does say that the rights can be limited by order of the court.

Schedule a Consultation

If you’re still unsure about whether you’re legally within your rights to move out of the state under your custody arrangement, make sure you consult with an experienced Texas family law attorney before you make any decisions. To speak with one of our attorneys regarding whether you can move out of the state with your children, please contact us today.

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