Divorce and Incarceration by Cassandra Hearn

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Marriages can disintegrate for a variety of reasons.  The reason behind divorce are just as unique and varied as the reasons behind the relationship itself.  Separation due to work or family can be one reason that a marriage may fail.  When that physical and emotional separation is due to incarceration, it can become even more likely that the marriage will not survive.  If your spouse is incarcerated, you should understand the similarities and differences between divorce proceedings that occur when neither spouse is incarcerated.


First, California is what is called a “no fault” state.  This means that neither spouse must allege or prove fault on the part of the other spouse in order to be granted a divorce.  Even if your spouse is incarcerated for a serious felony, this will not necessarily be relevant for the purposes of being actually granted the divorce.  However, the nature of the crime, as well as the duration of the incarceration, may be relevant for other issues, such as child custody or child support.


Next, your spouse’s incarceration does not remove his or her rights to notice of the case.  Just like any other divorce, when you file your initial pleadings, you must still serve your spouse with these papers.  Service on the incarcerated parent typically happens through the warden at the facility where your spouse has been incarcerated.  You can contact the litigation coordinator at the facility to ask for the specific steps that need to be taken.


After your spouse has been properly served, he or she will still have the right to file a response, just like a divorce litigant who is not incarcerated.  The incarcerated spouse will have thirty days from the date that he or she is served to file a response with the court.  If he or she fails to do so, then you may file a motion for default judgment.  Your spouse does not have the absolute right to appear at any divorce hearings.  However, he or she may file a motion asking the court to allow them to attend, which would mean that the prison facility would need to transport him or her for the hearing.  The incarceration standing alone does not prevent you from requesting such relief as child support or spousal support, but the obvious lack of income will certainly impact the amount or even possibility of the court awarding them to you.


If your spouse is incarcerated, we can help you get divorce.  Call us today for a consultation to discuss your case and what we can do to help you.