So your spouse is in jail and you want a divorce. What do you do?

by tylercook on February 25, 2013

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An issue among married couples sometimes occurs when one of the parties goes to jail. The other spouse may want a divorce, but doesn’t believe the person can be divorced while they are in prison. Though special rules apply, the incarcerated spouse can usually be divorced, even though they are in prison.


A court must have jurisdiction over the person being sued, whether for divorce or any other civil matter. Jurisdiction simply means the power of the court over the person. If the person is residing in the state where the divorce is filed, the court will have jurisdiction.

If the spouse of the incarcerated person moves out of state, the court may not have jurisdiction. If the person had never resided in the state where the divorce is filed, the court probably does not have power over the individual.


Husband and wife reside in Illinois as a married couple. Husband becomes incarcerated in Illinois. Wife subsequently moves to Texas. The wife then files a divorce action in Texas and serves the husband in prison. The court in Texas most likely does not have the power over the husband. On the other hand, the wife is permitted to file the divorce action in Illinois, because the husband resides in Illinois.

If the person is incarcerated in a mental health facility and is considered incapacitated by the court, special rules may apply. Often, a court will not permit a lawsuit against mentally incapacitated defendants. In other cases, the litigation may proceed if the guardian of the person is served.

Service of Process

For the court to obtain jurisdiction over the person, the defendant must be served with divorce papers. The party starting the litigation usually cannot be the same person to deliver the papers. Either a sheriff or person appointed by the court to serve process must deliver the petition.

For incarcerated individuals, each state has its own rules in how the person must be served. In some states, the person must be served in person. This is usually done on a visitation day, with the process server handing the papers through the glass and informing the prisoner that they are divorce papers.

In other states, the prisoner is served by serving the warden or chief administrator of the prison facility. The facility will in turn serve the prisoner. Most facilities have scheduled dates and times to accept papers.

If the plaintiff does not know the specific prison holding the defendant, contact should be made with the state’s Department of Corrections. An inmate number would help, if known, but the prisoner can also be located through name, date of birth and social security number.

Contesting the Divorce

The incarcerated person has a right to contest the matter, the same as if they were outside of prison. If the person decides to contest it, they can file an answer or other writing with the court. A copy of the answer is usually sent to the plaintiff.

Courts may require hearings on the matter, and may require the party to attend. If the defendant desires to attend, they will need to request a writ from the court permitting them to be brought to the courthouse on the day of the hearing.

Even if the person is incarcerated, the court has power to divide property, allocate debts, provide for the custody and care of children. The court is usually permitted to award child support, even though the prisoner has no income. A court can award and amount and let the arrearage accrue until such time as the person is released.

Byline:  Tyler Cook recently had to contact a Family Law Lawyer in order to handle some litigious family issues that arose in his household recently.




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