When a person receives a prison sentence for committing a crime, his or her spouse cannot file for divorce simply on the grounds of his or her spouse’s incarceration. However, the length of the other spouse’s sentence may be grounds for divorce. If a spouse’s prison term is two years or longer, the other spouse may file for divorce on the grounds of imprisonment. Other qualifying factors exist, as well. If your spouse recently entered prison and you are uncertain about the future of your marriage or simply want a divorce, contact a reliable and experienced divorce attorney as soon as possible.
Divorcing an Incarcerated Spouse in PA
Pennsylvania law allows a spouse to pursue a divorce on the grounds of irretrievable breakdown of the marriage or mutual consent, which simply describes both spouses agreeing to end their marriage. In such a case, the court will generally allow the divorce to proceed without a hearing, but the couple must separate for two years or more. The same statute applies to a divorce on the grounds of irretrievable breakdown. Once the two years pass, the couple can finalize the divorce 90 days after filing.
Other grounds may allow a spouse to file a divorce sooner than two years after separating. These conditions include:
- Willful and malicious desertion. This describes one spouse knowingly leaving the other with no intention of returning.
- Cruel and barbarous treatment. This applies to verbal, physical, and sexual abuse of a spouse. It may also apply to intimidation, isolation, wrongful imprisonment, or harassment.
- Endangering the life of the innocent spouse or the couple’s children. This may apply to situations involving drugs, violent crimes, or the incarcerated spouses’ proclivity toward violence.
- Knowingly engaging in an extramarital affair is an acceptable reason for filing a fault-based divorce in Pennsylvania.
- Bigamy, or marrying someone while legally married to another person, is also grounds for a fault-based divorce.
- Intolerable and burdensome indignities inflicted by the other spouse. This may apply to several situations, such as financial damage caused by an incarcerated spouse, isolation from social groups or community activities, stalking, harassment, and any other acts that cause emotional harm to the other spouse or damage his or her reputation or standing within a community.
Regardless of the grounds the innocent spouse pursues for divorce, inmates have the right of service of process and can receive divorce papers in prison. If the incarcerated spouse does not object to the divorce, he or she may simply agree in writing and start the filing process. In a contentious divorce, the other spouse may face a long road of hearings and other legal proceedings as required, and this can be a very time-consuming process with an incarcerated spouse who has somewhat limited access to legal services.
Options for Incarcerated Spouses
A spouse in prison will have access to divorce papers and other legal filing materials from the prison library. It’s possible for an incarcerated spouse to file for divorce from prison as well. Doing so requires filling out the appropriate paperwork and consulting with the prison’s legal counselor. In some cases, a prisoner may attend divorce hearings in person or may do so by phone if leaving the prison is not an option.
It’s important to remember that there is no way to legitimately stop a divorce if one spouse truly wants it. An incarcerated spouse may make the process more difficult and time-consuming by being uncooperative, but the petitioning spouse will be able to request a default judgment after enough time passes without a resolution or cooperation from the incarcerated spouse. If the incarcerated spouse agrees to the divorce but disagrees on elements of the divorce agreement, then the legal process can take longer until the spouses resolve their differences and reach a mutually agreeable solution.
Handling any type of divorce can be complex and stressful, and having a spouse in prison can add to the confusion and stress. If you have a spouse in prison and want a divorce, speak with an experienced divorce attorney in West Chester as soon as possible to start discussing your options.