It’s one thing if a couple is having problems that lead them to consider filing for divorce. Incarceration can lead to even more marital strife with divorce as the main option.
Should your spouse become incarcerated for reasons that may or may not be related to the marriage, it is possible to divorce him or her while they are incarcerated. You do not have to wait until they are released. Divorce during incarceration requires a few extra steps, but it’s not difficult.
How Is The Process Different?
Much of the divorce process is the same, as long as your spouse is locatable. You just need an address where he or she can be served.
If you and your spouse have already agreed to a divorce, the uncontested route is the best way to proceed. In this case, you will have to have all of your issues resolved ahead of time, including child custody (conservatorship), support, visitation, access, and the like. Additional issues such as property division, debts, and other financial matters must also be agreed to and resolved.
While you have the option to hire an attorney to represent you, chances are your spouse will not. Your attorney will file your Original Petition for Divorce in your home county.
Service Of Process
Your attorney will then prepare a Waiver of Service for your spouse, allowing him or her to waive formal service for the divorce papers. These are mailed to the facility where your spouse is incarcerated for signature. Once returned, your attorney prepares an Agreed Final Decree of Divorce to be filed in court.
If your spouse agrees to everything, he or she can simply sign the papers and return them to your attorney. He or she can, at this point, hire an attorney to review the papers before returning them. Once returned, your attorney can file everything with the clerk of court.
Texas still requires a space of 60 days between the time of the original petition filing and the court date for a final decree. On the 61st day, you can return to court for a final hearing and decree.
If The Spouse Contests
Should your spouse decide to contest the divorce, it would still work much like a standard divorce, but be more complicated.
First, you will have to have the spouse served via process server in the correctional facility where they are incarcerated. The process server will serve them with a copy of the Original Petition and a Citation, which notifies them of the deadline for them to file an answer. This date is the first Monday after the expiration of twenty days from the day he or she was served with your original petition to file an answer with the court.
Should your spouse (or their attorney) file an answer, your attorney will communicate with either the spouse or their attorney. If he or she can reach an agreement with the other side, temporary orders can be utilized while the final details are worked out. Mediation is also a possibility if the spouse is granted permission to attend.
Inmates can request permission to attend the divorce hearing. Some inmates will be granted permission and allowed to attend, depending on the circumstances. But it is entirely possible that a virtual court hearing will also be granted with Zoom, Skype, or another web conferencing.
If your spouse is denied permission to attend hearings and otherwise does not respond within the 20-day deadline, you can request a default judgment against him or her.
This can be done on Day 61 after your original petition is filed. Your attorney can file for a Final Decree of Divorce at that time.
Fort Worth’s Compassionate Divorce Attorney
If you’ve decided to divorce an incarcerated spouse, make sure you have the help of experienced legal counsel who can help you get service as well as the other important parts of a divorce.
Wendy L. Hart is an experienced family law attorney helping people throughout Tarrant County who need help with divorce. As a divorcee herself, Wendy understands the process as well as the difficulties involved. We represent both men and women in Tarrant County. We’ll make sure you’re treated fairly and will protect your interests and your children.