spouse in prison

Getting a Divorce When Your Spouse Is in Prison

Is divorce when your spouse is in prison possible?

Getting a divorce when your spouse is in prison is not a topic we commonly discuss. Under normal circumstances, if you want a divorce in Texas, you will have to follow the procedures required by the state. Even under the most normal circumstances, the situation surrounding and leading to your divorce would be unique from that of others. However, you would still have to follow the same process that everyone has to go through in getting a divorce in Texas.



Divorce When Your Spouse is in Prison



What if you want to get a divorce but your spouse is in jail? It can be complicated to tackle any family law case when your spouse is in prison. If your spouse has been in prison for a long time, it’s possible that you may have lost touch, so getting a divorce can be more challenging than a normal divorce. Your spouse will also have limited ability to be present in mediations and hearings because of his or her incarcerated status. Is it even possible to get a divorce when your spouse is in prison?


Type of Divorce


When you are looking to get a divorce when your spouse is in prison, an uncontested divorce is your best bet. This will only be possible when you are communicating with your spouse and you both agree that getting a divorce is the best option for you and your family. If you also agree to all other issues that follow a divorce such as child custody and support, you will have an uncontested divorce. You will also have to agree about the division of your marital property. In this case, you can hire an attorney to help you file the original petition for divorce. Since it is an uncontested divorce and both sides are in agreement, your spouse can choose not to hire an attorney of his or her own.



A Different Divorce



We have to give you a heads up, a divorce when your spouse is in prison is going to be slightly different from a normal divorce. After helping you file your original petition for divorce, your attorney will prepare a Waiver of Service. This document will be signed by your spouse, where he or she will agree to give up his or her right to receive notices and documents regarding your divorce, especially your divorce papers. You can mail this waiver to your spouse and he or she can sign it and return it either to you or to your attorney.


Once your attorney has the signed waiver on hand, your attorney can prepare the Agreed Final Decree of Divorce document. This will state everything you have agreed on regarding your divorce, your arrangement with your children as well as property division. Both sides will review the document and when nothing is amiss, you can both sign this document. Your spouse is free to hire an attorney to help him or her out regarding this matter. Once it is signed by both parties, the document will be submitted to the clerk of the county where you filed for divorce.



Getting Your Divorce Granted


It is important to note that in Texas, a divorce can only be finalized after sixty days from the filing of the Original Petition for Divorce. There will also be a Prove Up hearing. This is when the judge will review your divorce decree to see if it covers all the necessary aspects of a divorce. You will have to be present at this hearing. Your attorney will ask you questions regarding basic information about yourself, your marriage and your family. You will also have to briefly discuss the agreements you have with your spouse regarding the divorce. If there are no issues, the divorce will be granted on that day. However, the signed copies of your Divorce decree will be available in about a week.



Contested Divorce When Your Spouse Is In Prison


An uncontested divorce when your spouse is in prison may be your best option, but sometimes it can’t be helped and you will need to go through a contested divorce. When your divorce is contested, there will be no signing of the Waiver of Service. Instead, a process server will pick up and deliver the divorce documents to your spouse. The process server will also provide your spouse with a copy of the Original Petition for Divorce, along with a citation with information regarding the deadline for filing of an Answer.

Your spouse will then have to file an answer and your attorney can communicate with your spouse or your spouse’s attorney. If it’s not possible to reach an agreement, temporary orders can be obtained from the court. If it’s possible for your spouse to be away from the prison premises for a few hours, mediation is another option so that you can reach an agreement. Communication is key between you and your spouse as well as attorneys from both parties.



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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at timothy.hutton@austintexaslegal.com

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