How does a divorce work when one of the spouses is in jail? Assume that it will be contested, and there are both assets and minor children to be dealt with, and that the jailbird won’t be released for a significant amount of time - say 5 years. How does the incarcerated spouse deal with legal filings, court dates, etc. etc. Does the free spouse generally wind up “winning” most/all of the assets and get full & permanent custody of the kids? If not, how would the assets be divided & stored until the release? And how about the kids - can an incarcerated spouse get joint custody to start after their release?
Well there will be no problem in serving them papers and few excuses for delays. Those can be major hangups to a divorce when both parties are free.
I would imagine that in most states an incarcitared person would need to pay for thier own transportation to the procedding if they decide to fight the case. Expensive and never a good idea to show in court in chains and with armed escorts if you want the judge to emphasize with you.
Divorce law varies by state. In New York, incarceration lasting longer than three consecutive years is per se grounds for divorce - it cannot be contested, assuming the fact of incarceration >3 years is proven. Three actual years must be served before divorce can be sought – but an overturn of the conviction does not overturn the divorce.
My brain is foggy on this one, so if I am wrong, anyone chime in, but I am pretty sure only the person NOT incarcerated can bring the grounds for divorce.
Heh. I just finished drafting a divorce on that very ground. In my state, it’s easy. Being sentenced to prison is sufficient grounds for divorce. You send the summons to the sheriff of the county where the person is incarcerated for service, and file your proof of process when completed. The defendant has 30 days to respond, and can counterclaim if he wishes–but the Department of Corrections will not transport him to attend a divorce/custody hearing, so the court is only going to hear the Plaintiff’s version of events.
The only proof you have to put on to get the divorce is that he was sentenced to prison and did not receive a pardon prior to being sent to prison, a certified copy of the sentencing order, and a corroborating witness. You get custody by…well, technically it is not a default, but the prisoner can’t have custody, so the options are the Plaintiff or the State, unless some third party attempts to intervene which is unlikely in most cases. I’ve never seen one where there were significant assets involved, but under the law, if the defendant fails to respond, the Plaintiff will get whatever was requested in the complaint. If the defendant did respond, and there were significant assets, I suppose the court could appoint a guardian ad litem for the prisoner or something.
Do I understand correctly that the defendant could respond in writing, or even have their lawyer represent them at the hearing even if the DOC won’t let them attend in person?
Yes, the defendant can file an answer and/or counterclaim, or any other pleading, if he wishes to do so. If they file such a pleading within the 30 days allowed for a response, they’d then be entitled to notice of all further hearings. They could also, in theory, hire a lawyer to represent them at any and all hearings. That lawyer could cross examine Plaintiff’s witnesses, present evidence, call Defense witnesses, etc. I’ve never seen it happen, but it is possible. If there was a lawyer representing the Defendant, that lawyer might push for more participation from his client…perhaps testimony by telephone or deposition, or whatever the Court will allow.
Also, on custody–in my state, once a custody determination is made, it can only be changed by proof showing a material change in circumstances adverse to the best interest of the child. It is not enough that the non-custodial parent rehabilitate themselves. If nothing about the custody situation changes in a way that is bad for the child, the non-custodial person can’t get custody. They may be able to get visitation after release from prison, but they’ll be ordered to pay support as well.
Those can be major hangups to a divorce when both parties are free.