Divorce and Incarceration 101 – Everything You Want to Know

By Natalie

Updated: February 19, 2020

As a person of single status, I considered myself to be lucky when I was incarcerated because I didn’t have to worry about a relationship. Just about everyone who has a significant other when they get locked up thinks that the relationship will survive, but the sad truth is that relationships rarely make it through a prison sentence.

Whether it’s a spouse or a boyfriend/girlfriend, those on the outside are rarely able to handle the trauma of having a partner behind bars – or vice versa – especially when the sentence is longer than a few months.

In fact, research shows that for every year someone is incarcerated, the likelihood of divorce goes up 32 percent.

Relationships and marriages are difficult enough when you are both in the free world. However, the financial responsibilities, the long distance, and the everyday struggles related to kids and work are just too much for people to handle when their partner is locked up. 

If you are married when you go to prison, you can file for divorce while you are incarcerated. Your spouse in the free world can also file for divorce from you. That leads us to today’s blog post: Divorce & Incarceration 101 – Everything you need to know.

In this blog post, I will cover the following topics:

  • Can you divorce someone who is in prison?
  • How does an inmate file for divorce?

Can you divorce someone who is in prison?

Yes, you can divorce someone who is in prison. No matter if the inmate is in a state or federal facility – or if they are in the county jail – you have the right to file for divorce from someone who is serving time.

I am not an attorney, and this is not legal advice. However, the information I am going to share can point you in the right direction when you are looking to divorce an incarcerated spouse.

When you are divorcing someone who is locked up, the process is pretty similar to an ordinary divorce. If you and your spouse agree on all the significant issues related to ending the marriage, you will most likely be able to complete an uncontested divorce.

This kind of divorce goes pretty quickly because both spouses agree on all of the terms. They usually require less paperwork, lower attorney fees, and fewer court filing fees. The rules for divorce vary by state, but uncontested divorces usually require the following:

  • both spouses agree to end the marriage
  • neither spouse disputes child support or child custody
  • the spouses do not have a joint bankruptcy pending
  • no substantial property or assets need to be divided between the spouses, and
  • neither spouse is seeking alimony

It is always best to consult with an attorney when you are considering a divorce, especially when your partner is incarcerated. There might be special considerations, and a lawyer can help guide you through all of the forms and materials that you must submit in order to proceed with the divorce.

There is also the possibility of a contested divorce if your incarcerated spouse does not agree to the split, and it will require a lot more time and money. In this case, a judge will determine the outcome of the disputed issues, which are usually centered around asset and property allocation, as well as spousal support, child support, and child custody.

The incarcerated spouse has a right to be involved with the legal proceedings, and they will most likely receive permission to attend the hearings. They might be granted a guardian ad litem to attend court in their place.

Even though divorcing someone who is incarcerated isn’t much different from a regular divorce proceeding, you must consult with an attorney so you can learn the specific laws in your state and find out how to proceed.

How does an inmate file for divorce?

The first stop for inmates who wish to file for divorce is the prison law library. As a rule, there are divorce packets available that will advise the inmate on what forms to fill out and who to contact. It is extremely difficult to file for divorce when you are in prison because most inmates don’t have any money and their ability to communicate with people on the outside is limited.

Some states have an indigent divorce option for people who are incarcerated that will allow them to file for free, or for a minimal cost.

The required forms vary by county and state, but common forms in an inmate divorce packet include:

  • Petition. The petition states that you are filing for divorce from your spouse. This form may include the reasons for divorce, and it is common for the petition to list the assets that you and your spouse share.
  • Summons. The summons is a piece of paper that your spouse will receive along with a copy of the divorce petition. The summons tells your spouse how long they have to respond to the divorce papers.
  • Court information sheet. The court information sheet will specify which court is handling your divorce and which judge has been assigned to the case.

Inmates can also get help from the prison librarian, and some law schools offer help to inmates with legal issues.

Again, this is all general information, and I am not a lawyer. If you need specific information on filing for a divorce from an inmate, please contact an attorney.

Do you think divorce should be easier for someone who is married to an inmate? Let us know in the comments below.


Explaining the association between incarceration and divorce


How to divorce an incarcerated spouse

    • They will have to go to the law library and get the divorce packet. The inmate needs to consult with the librarian and/or the chaplain.

  • What happens if there is properties and businesses owned by the incarcerated spouse for long before they where married as well as personal property, animals etc?

  • The prison he was at prior didn’t have anyone even with all the paperwork sent to him to guide him on what to do, and at his current prison they have had constant even months worth of lockdowns due to covid. He & his estranged wife that never got a divorce 11 years ago both fully agree with it just never went and did the paperwork. Now he is ready to get married & more than ever wants to get this paperwork done before he comes home. My question is I have the completed paperwork with signatures. I just don’t know the steps of what to send in and if there is away to rush the divorce without it taking 6 months. Especially with Covid going on right now & everything isn’t as accessible. What free lawyers could I contact? Sorry for the long message with the question…. lol

    • Hi I’m sorta in this kind of situation I was wondering where did you get the packet to fill out for them? He isn’t able to get one in the prison he is at because of the covid situation and I have no idea where to get the documents for free to send to him.

      • you can google dissolution of marriage forms for the state you reside in at least in missouri you can and you can print them off for free also in missouri you can request a free copy of dissolution papers to be filled out for uncontested divorces

      • If it is an uncontested divorce, google uncontested divorce in your state and there should be a packet available for free. I found one for my son in Arkansas and all we have to do is fill it out and file it with the circuit court, if my son was free he could then go to court with a witness and everything would be done. I’m still trying to figure out how with covid they are handling a divorce that is filed by an inmate. since the plaintiff is suppose to appear before the judge. The Defendant can choose to waive their right to go before the judge. If the person on the outside is the plaintiff it would be easier as then the incarcerated person could waive their rights to appear and the spouse could appear in court and everything would be done. But I’m afraid that my son’s wife won’t follow through even though she isn’t contesting the divorce.

  • This is going to sound odd but i am filing for a divorce and my husband is currently incarcerated. I know he is going to want to contest it. I don’t want him to feel like getting short changed because he wont have a lawyer and i know he will not be able to show up to the court hearings. Will he be able to respond or will it all default? I want him to have a lawyer or be able to do research if need be. Whatever he needs to be comfortable with it since he wants to stay married and i don’t.

  • Great post , it’s actually a great and useful piece of info . A police investigation or criminal prosecution is always a stressful time. An experienced lawyer can support you throughout and maximize your chances of achieving the possible outcome. Divorce Rate in Canada You may find more details here.

  • My husband left me and said he no longer loves me after spending 9years together, We have a beautiful daughter of 6 Years. I was not able to understand just how someone can fall out of love after 9years marriage The fact that he feels the way that he does. He no longer wants to do anything with me talk to me or see me I feel that our marriage can be saved but it was miserable when my partner doesn’t want anything to do with me. few weeks ago a friend told me about priest olokun and i reach him through his email [[email protected] com] after 7 days my husband came to me and he admitted that everything he had been doing to me was wrong and he truly apologized.

  • Natalie, this is Natalie! My girlfriend married a guy in prison! He got 34 plus. She wants to divorce him. She is on unemployment and rents an apartment. He wants spousal support for 18 months.. she has nothing. Any suggestions?

    • Unless why he is in there is because you were his codefendant you should be able too ..also if there is an Injuncion of protection or domestic violence order against either of you. Other than that you should be able too. unless he requests no mail or visits from you.

    • Tara,
      You need to contact his place of incarceration and ask their policy. These vary from place to place. It is ultimately up to the warden/ jailer. For example, some jails allow inmate to inmate letters. Others don’t. From my experience, I do not see any issues with ex’s writing.

  • After an inmate fills out the necessary documentation for a divorce, who does the inmate need to give the paperwork to?

    • All this junk about Law Clerk, Library, Attorneys, & Easy Access To Paperwork For Inmates is crap. I just did 11 yrs, & most prisons in NC don’t even offer 2 pillows, let alone help from the outside world. NC has 3 levels of custody: Maximum, Medium, & Minimum. In some Minimum custody camps you may find a library, computer, or if you are extremely good, you can even go home on the weekend, once a month. It’s hard for inmates to get help in prison. I got my divorce papers on September 7, 2007, in Medium custody, & even my Case Worker wouldn’t send & receive emails for me.

      • My cousin is locked up in NC medium security and asked me to help him file for a divorce. You think they’ll let me mail him the paperwork to fill out? Do they have access to a notary?

  • My wife went to prison and called me and told me she had divorced me.I never got any kind of paper In the mail at all regarding the divorce.She got out of prison and was killed by getting rsn over by a truck Un Charlotte and was already supposedly married to another man.She married me and used a fake name.She was a Burrell but out of the blue she used Miller as her last name.

  • I’m wondering where to start to find out If our marriage was legal since she used a bogus name and If we were legally married I should be entitled to her social cecurity.This might be a bit of a shock to the man she was married to when she died.Im not looking to hurt anyone I just want to know facts.First was our marriage legal because she used a alias name and If she actually did divorce me In Prison.And If Our marriage was legal why wasn’t I ever sent any documentation and do I have a right to her social security earnings?.I think the man she married after me may be getting her social security money and that would be fraud committed on her part.

  • We are going through this now… Many prisons do not allow inmates to file themselves or initiate the divorce. It also turns out there are rules in most counties about how long they have been residence in the prison before they can initiate divorce. It does in most cases require the prisoner to give POA to someone they trust and have them initiate work on the divorce case on their behalf. I’m sure a few prisons allow the law library to get involved but many it doesn’t.. In many cases they talk about prisoners rights, and when it comes down to it, they don’t have much of any in these cases…

    • I’m dpoa and filled out paperwork for my incarcerated person but I’m having trouble figuring out what county I would take the papers to. His courthouse or mine since I have dpoa over him. Any help?

  • I’m married to a con man that will not even try for a divorce. I think he is lying to me. This is the 3rd time ( at least) that I have asked. There’s two things here. He’s got a woman. He’s worried that if he’s free, she will demand marriage. And his sentence will most likely be life in prison without parole. After his current conviction is vacated. I don’t want to spend another cent where he is concerned. Help !

  • Should an inmate who is being divorced allow divorce papers to be sent to his Counselor? Could wife and attorney be trying to get info because we both have 401Ks but hers is much larger. Brother is not contesting. Is he entitled to compensation? Thank you.

  • I was incarcerated when my wife file for divorce. I never made it to court and they left her with the house. Is that legal, can they do that?

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