How to Divorce Someone in Jail or Prison?

Updated on 06/15/2022 / Under

Perhaps the worst thing a marriage can go through is a spouse being incarcerated. A legal conviction and jail time can make even the strongest of marriages to weaken and fall apart. Rare are those marriages and relationships that survive long-term jail time.

With every year that a spouse spends in prison, the chances of the marriage surviving drop by approximately 32%. With one spouse languishing away in prison, the burden of responsibilities all falls on the spouse who is outside.

Financial burdens, child-rearing challenges, emotional depravity, lack of intimacy, and connection; all these can become too much for one person to bear alone. Indeed, it is not only the person who is incarcerated who suffers; their spouses suffer almost equally with them.

Many feel guilty for divorcing someone who is suffering in prison. However, there is no need to. The other spouse should acknowledge their own suffering and anguish and do what is best for themselves. Ending a traumatic marriage is better than continuing it. Many marriages never do recover from a spouse’s incarceration, even after they have been released from prison.

Once you have made up your mind to divorce your incarcerated spouse, you must hire a family lawyer to help you through the legal formalities. The process of divorcing someone in prison is, surprisingly, not very different from a regular divorce case. Ktenas Law has the experience and knowledge to handle your divorce case.

Terms of Divorcing an Incarcerated Spouse in Illinois

In Illinois, the process for divorcing an inmate is fairly simple if you qualify to get a divorce in Illinois. One of the conditions to file for a divorce in Illinois is that either of the spouses must have lived in Illinois for a minimum of 90 days to be eligible to petition a divorce case in the state.

The reasons for divorce may be plenty in a marriage like that. You can state drug abuse, mental or physical abuse by the spouse, or being convicted of a felony as reasonable grounds for divorce. However, it is not necessary that such drastic reasons be present.

Illinois allows for a no-fault divorce, meaning that the petitioning spouse does not have to prove that the incarcerated spouse did anything ‘wrong’ per se to warrant the divorce. The reasons for divorce can be anything, either related to the spouse’s conviction or not.

Related: How to prepare for divorce

The Process of Divorce

The process is much like any other divorce process. The petitioning spouse or the spouse who is not serving prison time can begin the divorce process by filing a Petition for the Dissolution of Marriage. The petition is a short one and asks for basic information such as both the spouses’ names, the number of offspring, and the reason for divorce.

It does not get into much detail about why the partners are choosing to get a divorce, and the financial, personal, and emotional explanations around it. The petition must then be submitted to the clerk of court.

Once the petition has been filed, the petitioner must serve it to the spouse in prison by delivering a copy of the petition to them. The local law enforcement staff will deliver the documents to the spouse in prison on the spouse’s behalf.

After being served, the incarcerated spouse has about a month to respond to it.

man in jell cell

Uncontested vs. Contested Divorce

Divorce cases don’t always have to go to court; they only do so when the two parties cannot reach an agreement on the terms of the divorce.

A divorce where both spouses part ways, mutually agreed on all terms, is called an uncontested divorce. Uncontested divorces are fairly simpler and are finalized quicker than a contested one. No divorce hearings are required; the spouse in prison only needs to sign the divorce papers that are served to them, and the petitioning spouse can go to court to finalize the divorce. Because of the uncomplicated nature of uncontested divorces, lesser time and hassle involved, and no court hearings whatsoever, the attorney fee for such cases is also considerably lower.

However, not all ex-spouses always agree on divorce terms so easily. If there are even a few terms that a spouse wants to challenge, the case is a contested one and will have to go to court. A pre-trial conference is held, and the spouses’ lawyers represent them in court.

The judge states how he is likely to rule on the contested terms, and if either party still has issues with it, then the case goes to a divorce hearing. The incarcerated spouse is not allowed to attend this hearing but has every right to be represented by a divorce attorney. The judge makes his final ruling on the matter, and these are to be legally binding.

Related: Cost of hiring a divorce attorney

If the divorcing couple has a child, the custody naturally goes to the non-incarcerated spouse. However, the spouse in prison does get visitation rights if the court deems it safe and healthy for the child, emotionally, morally, and physically. The incarcerated spouse obviously has several limitations and thus is exempted from paying child support while being in prison.

Property division is also something that the couple must mutually decide and agree upon. Ideally, a 50/50 division would be fair, but since the incarcerated spouse cannot pay child support, the court may divide the property disproportionately to allow the custodial parent to have more financial liberty and ease in raising the child.

Once the court has passed its judgment, the divorce is finalized. Adhering to the terms and conditions is now a legal requirement for both the spouses.

Hire a Lawyer

An attorney who is well-versed in the family and divorce laws in Illinois can make the entire process of divorcing an inmate so much easier. Divorces are emotionally challenging situations, no matter the reason for it.

With a contested divorce, it can also become physically draining for one spouse to run around getting things ready and appearing in court. A lawyer by one’s side can give you valuable legal advice and see you through the paperwork and formalities of court.

An experienced divorce lawyer will strive to get you the best out of a divorce and make sure that your demands are heard and considered by the judge. Contact us today to schedule your FREE consultation.