Unique Challenges of Divorcing an Incarcerated Spouse

Divorce rarely is a simple process. Even so-called uncontested divorces oftentimes end up with complications. The reality is that a divorce can be extremely complex and challenging when one spouse is serving time in prison or even jail. There are a number of unique challenges and considerations which we discuss in this article that are associated with the process of divorcing and incarcerated spouse.

Limited Communication Channels

Communication is vital during the course of New Jersey marriage dissolution proceedings. One of the most complicated and frustrating aspects of divorcing an incarcerated spouse involves issues surrounding communication. Communicating with a spouse behind bars is often restricted to monitored phone calls, letters, or supervised visits. This reality makes it difficult to negotiate the settlement of a New Jersey divorce including:

• Settlement terms
• Divorce case logistics
• Even maintaining a civil dialogue

The lack of consistent communication oftentimes slows the legal process of ending a marriage, many times significantly so.

Jurisdictional Issues and Challenges

Deciding where to file a divorce can be tricky if one of the spouses is incarcerated. If the incarcerated spouse is serving time in a prison located in a different state than the marital home, questions of proper jurisdiction very well might arise. Courts generally favor filing in the non-incarcerated spouse’s state of residence, but procedural challenges can and very well may surface nonetheless.

Serving Divorce Papers

Serving papers on someone in prison or jail can prove to be not as straightforward as at a private residence. Service must often be coordinated through prison officials. Many correctional facilities have strict requirements in this regard. If the inmate refuses service or fails to respond, the filing spouse must request a default judgment, adding time and complexity of even an otherwise relatively New Jersey divorce proceeding.

Participation in Court Proceedings

Incarcerated spouses typically cannot appear in court in person even in a case involving the ending of their own marriages. On the other hand, courts may allow them to participate via video conference or even written affidavit. Indeed, since the start of pandemic and continuing to this day, New Jersey courts do utilize virtual court proceedings, even in instances in which neither spouse is incarcerated.

Child Custody Complications

If children are involved when divorcing an incarcerated spouse, custody determinations take on added weight. Divorcing an incarcerated person typically involves the imprisoned person (obviously) not being granted physical custody but may share in joint custody. An incarcerated person may be entitled to parenting time – which may come in the form of scheduled in-person visits at a correctional institution as well as virtual parenting time as well. Balancing a child’s best interests with parental rights is a delicate task in the best of circumstances. It becomes even more challenging when a spouse is incarcerated.

Child Support and Financial Support

Even though incarcerated individuals rarely earn income, they may still have child support obligations. Courts must decide whether to suspend or reduce payments during incarceration. For the custodial parent, this can create financial strain, since support may be minimal or nonexistent.

Division of Property or Assets

Dividing marital property when divorcing an incarcerated spouse can be complicated by limited access to financial records or property titles. If the incarcerated spouse had assets seized as part of their conviction, those losses further complicate equitable distribution. Despite these facts, the standard applied by the court remains equitable division of property.

Impact of Criminal Conviction on Divorce Grounds

Many states allow divorce on what are known as fault-based grounds. In New Jersey, imprisonment can be a ground for a fault divorce. While this can streamline the filing, it can also affect such things as:

• Property division
• Spousal support
• Custody determinations

Emotional Stigma and Public Scrutiny

A spouse divorcing an incarcerated partner often faces stigma in the community. Friends, family, and even children may struggle with the dual burdens of explaining the incarceration as well as the divorce. This emotional dimension can intensify an already stressful experience for the parties to a New Jersey divorce as well as their families.

Reentry and Post-Release Issues

Finally, when divorcing an incarcerated spouse, even after the proceedings come to an end, challenges may not end. For example, upon release, an ex-spouse may seek to modify custody, visitation, or support orders. There can be other associated complications as well. If you have any questions concerning divorce in New Jersey, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.