Divorcing a spouse who is incarcerated in jail or prison is often not a lot different than divorcing a spouse who is not incarcerated. As with other divorces, much of the divorce process will be determined by whether (1) the divorce is uncontested and the spouses are able to agree on how to resolve all issues, including the division of property, the division of debts, child custody, child support, and spousal support; or (2) the divorce is contested and the case must proceed to trial for the judge or jury will determine all such issues.
An incarcerated spouse is entitled to notice of the lawsuit for divorce and must be served with the lawsuit in jail or prison unless the incarcerated spouse agrees to waive service of process. Laws vary from state to state and (1) an incarcerated spouse may be entitled to participate in court proceedings by video or phone; (2) an incarcerated spouse may be permitted to attend divorce proceedings in the courtroom; or (3) an incarcerated spouse may hire an attorney, or may be required to have an attorney appear at divorce proceedings.
Although there may be fault-based grounds on which a spouse can seek a divorce from an incarcerated spouse, most such divorces are sought on no-fault grounds.
In Texas, divorcing an incarcerated spouse follows similar procedures to divorcing a non-incarcerated spouse. The process can be either uncontested, where both parties agree on the terms including property division, debt allocation, child custody, child support, and spousal support, or contested, leading to a trial where a judge or jury makes those determinations. The incarcerated spouse must receive proper notice of the divorce proceedings and can be served while in jail or prison. They may waive the service of process if they agree. Texas law allows the incarcerated spouse to participate in the court proceedings, which can be through video or phone conferencing, though in some cases they may be permitted to attend in person. Alternatively, the incarcerated spouse can hire an attorney to represent them in court. While fault-based grounds for divorce are available, divorces from an incarcerated spouse in Texas are commonly filed on no-fault grounds.
