Filing for divorce is never an easy decision, and it can be especially emotionally or legally confusing if your spouse is serving time in prison. You may wonder if your ability to file for divorce will be impacted if your spouse is incarcerated. However, the good news is that your spouse’s imprisonment does not prevent you from initiating the divorce process. To learn more and secure skilled advice during your case, reach out to a knowledgeable Montgomery County divorce lawyer today.
Can I File for Divorce in PA if My Spouse is Incarcerated?
Yes, you can file for divorce even if your spouse is incarcerated. One spouse being in prison does not prevent the other from initiating the divorce process. Whether they are serving a short stint in county jail or a long prison sentence, you can still legally end your marriage. In fact, the process follows the same steps as any other divorce, though additional coordination is generally required.
How Can I Get Divorced if My Spouse is in Prison?
First, file a Complaint for Divorce with the court. This document will outline the reason for the divorce and what you are requesting, such as property, alimony, or custody arrangements. Once filed, your spouse must be officially served with copies of the divorce documents. The sheriff or process server can deliver them directly to the correctional facility.
Your spouse has 20 days to respond to the complaint. If they do not respond, you can request a default judgment. However, if they do respond and contest any of the terms, the court may hold hearings. Your spouse can participate through video, phone, or written correspondence. They can also be represented by an attorney who can be present for them.
Once all requirements are met, the court will issue a divorce decree officially terminating the marriage. The process is generally the same as any other divorce, except that accommodations may have to be made for the incarcerated spouse.
Is Imprisonment a Valid Ground for Divorce?
Pennsylvania state law recognizes both no-fault and fault-based divorce. In a no-fault divorce, you are not required to prove any wrongdoing on the part of your spouse. However, in a fault-based divorce, you must provide evidence of your spouse’s indiscretions or bad behavior.
The valid divorce grounds under PA law include the following.
- Willful and malicious desertion
- Adultery
- Cruel and barbarous treatment
- Bigamy
- Imprisonment for 2 or more years
- Indignities that make the other spouse’s condition intolerable
- Institutionalization in a mental health facility for 18 months or longer
- Irretrievable breakdown of the marriage
Your spouse being in prison does not prevent you from filing for divorce and can even be used as a valid reason to initiate the process. If your spouse has served 2 or more years after being convicted, it is considered a ground for divorce.
It is important to note that while imprisonment is a valid reason for divorce in Pennsylvania, you do not have to use it as the ground for divorce. Fault-based divorces are more complicated and generally take more time and money than no-fault divorces. In addition, you could use a different fault ground if the actual reason for you initiating the process is different from your spouse’s current situation.
