Would incarceration be considered grounds for divorce?

Posted By Max Soni, On November 7, 2020

A spouse being incarcerated can put tremendous strain on a relationship. For many people, a spouse being sentenced to a long jail or prison term is a deal-breaker for the marriage. Many states recognize the damage incarceration can do to a marriage and make it easier to get a divorce when a spouse is sentenced to prison. Incarceration is considered legal grounds for divorce in most states, including New York, although the process of getting divorced from someone in prison is usually the same as any other divorce.

What Does Grounds for Divorce Mean?
Today, all states have some type of no fault divorce, which means a divorce can be granted on the grounds of incompatibility, separation, or something else without holding one spouse responsible for the marriage failing. The spouse who files for divorce can also cite specific grounds for divorce, which essentially places the blame on the other spouse. Common grounds for divorce include:

Irretrievable breakdown in the relationship. This is considered a “no fault” divorce.

Incarceration. Incarceration is a ground for divorce in most states, including Texas, New Jersey, New York, and Pennsylvania. Each state has its own rules for when incarceration can be used as grounds for divorce, however, and the length of incarceration required for divorce on this ground ranges from 1-3 years. In New York, incarceration can only be considered grounds for divorce if the other spouse has been imprisoned for at least 3 years prior to filing for divorce. If three years of confinement have not passed, the other spouse can choose to file for a no-fault divorce. In many other states, a felony conviction and a sentence of incarceration of more than 12 months is considered grounds for divorce.

Abandonment. In most cases, the spouse must have been abandoned for at least 1 year. Examples of abandonment include a spouse leaving the home with no intention of returning or refusing to have sex with the other spouse.

Cruel and inhumane treatment. This refers to physical violence, severe emotional or mental suffering, or a situation in which it would be dangerous, improper, or unsafe for the spouse to remain married.

Adultery. This type of grounds is hard to prove as it requires proving adultery with evidence that does not come from either spouse, such as video or digital evidence.

Separation. Most states require a separation of a specific period before it can be used as grounds for divorce.

Will a Spouse Being in Prison Prevent a Divorce?
Divorcing a spouse who is incarcerated is basically the same as any other divorce, although there are a few unique aspects. A spouse in prison still has rights, especially when children or property are involved in a divorce. The spouse will also be required to respond to the paperwork or you will need to wait the minimum amount of time — typically 30 to 60 days — before the divorce can proceed. Someone who is incarcerated may also have the right to a court-appointed lawyer. There will be a hearing after you file paperwork, but it’s unlikely your spouse will be allowed out of jail or prison to attend the court hearing.

What Happens if My Spouse Refuses to Sign?
When you file for divorce, you must serve your spouse with paperwork. This can be done through the local sheriff’s department of by sending it via certified mail, in most cases. If your spouse agrees to the divorce and signs, the divorce process will begin as any other no fault divorce, except your spouse will not attend any divorce hearings. Instead, your spouse’s attorney (if they have one) will attend on their behalf. If your spouse contests the divorce or refuses to sign the papers, it extends the process. Most states have a time period of 30 to 60 days during which the spouse has the opportunity to respond. If your spouse does not respond to the papers, you can request a default judgment in some states. Otherwise, your divorce can become quite complicated and it may be best to hire an experienced divorce attorney for representation and to assist with negotiation or mediation.