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Can I Divorce From My Spouse That Is In Prison?

cropped image of prison officer wearing handcuffs on prisoner

When one spouse is incarcerated, the dynamics of the relationship change dramatically. This can be a difficult time for both parties involved. One question that often comes up is whether or not you can divorce your spouse while they are in prison. The answer is yes; however, it can be more complex and challenging than divorcing a spouse who is not incarcerated. It is important to understand the changes to the divorce process when one spouse is incarcerated and an attorney can help explain things in more detail.

What Are The Potential Changes?

On the surface level, it is obvious that divorcing someone while they are behind bars can be more complex to navigate. Some of the changes to the divorce process when one spouse is in prison include:

  • The incarcerated spouse may have limited ability to participate in the divorce proceedings. This can make it more difficult to reach a settlement agreement.

  • There may be additional challenges with asset division if the incarcerated spouse has assets that are difficult to divide such as a retirement account.

  • Child custody and visitation can be more complicated when one parent is in prison. The court will take into consideration the best interests of the child when making a determination.

Depending on your unique situation, there may be other challenges that arise during the divorce process. The team at Bush & Taylor, P.C. is able to review the details of your case and find the appropriate approach for the best resolution.

How Are Legal Guardians Involved?

Another component to consider is that the Commonwealth of Virginia considers incarcerated spouses as having a disability. Due to this, they are entitled to access to a Guardian ad Litem, also known as a legal guardian. This is an advocate who represents the incarcerated spouse’s best interests during the divorce proceedings. However, it is important to keep in mind the implications of having a Guardian ad Litem in your case. For example, you may be responsible to pay for the costs of representation. The exceptions to this rule are if your spouse is:

  • Convicted of crimes after your marriage.

  • Guilty of committing crimes against your children.

  • Facing one or more years of incarceration.

After a guardian is appointed for your spouse, the divorce process can continue. The guardian will represent your spouse in prison and communicate with your attorney based on their needs.

Does At-Fault Divorce Play a Role?

Virginia is also an at-fault divorce state. This means that you can cite grounds or reasons for the failure of your marriage in order to circumvent other established divorce requirements such as living apart from your spouse for a year. The following are components of filing for an at-fault divorce while your spouse is imprisoned:

  • Your spouse was convicted of a felony after marriage.

  • Your spouse is facing incarceration for one or more years.

  • You did not resume or continue living with your spouse post-conviction.

It is important to know whether or not you can qualify for an at-fault divorce in order to optimize your process. An attorney will be able to ascertain if your situation meets the established criteria.

How Do You Serve Your Imprisoned Spouse?

If your spouse is serving time, that also means how you serve or inform them about the divorce will also differ. Most commonly, an incarcerated spouse will waive their right to service. If issues arise during this process, the guardian or facility where your spouse is serving time will step in.

Have Additional Questions? Bush & Taylor, P.C. Can Help

The decision to file for a divorce is not easy to make, especially when you are facing additional challenges like a spouse who is incarcerated. However, retaining a knowledgeable and experienced attorney will immensely help. At Bush & Taylor, P.C., we have an understanding of both family law and criminal matters and will be able to assist you in navigating your complex divorce.


Reach our office today at (757) 926-0078 to schedule a consultation.