In the state of Texas, a felony conviction is grounds for divorce. If your spouse is currently incarcerated a felony conviction can serve as fault grounds for divorce if the spouse is convicted of a felony during the marriage and in prison for at least one year and you are wanting a divorce, this article will help answer some questions you may have about the process.
How different is divorcing an incarcerated spouse?
Surprisingly, the process of divorcing an incarcerated spouse is not that different than a regular divorce where both parties are not incarcerated, but there are still commonly asked questions we get from clients in regard to the divorce process when it involves an incarcerated spouse. If you are wanting to file for divorce while your spouse is incarcerated, you do not have to wait until they are released from jail/prison to do so.
You will need to complete an Original Petition for Divorce and then file in the appropriate county. Once you have filed your Original Petition for Divorce you will then need to have your incarcerated spouse served with the divorce papers. You will need the name and the address of the prison facility where your spouse is being held, along with their inmate identification number. Once you have this information you can arrange for a constable, sheriff, or process server in the county where your spouse is incarcerated to deliver them the divorce papers.
If you and your incarcerated spouse are in agreement.
If you and your incarcerated spouse are speaking and are both in agreement to the divorce, it can make the process much easier. If your incarcerated spouse agrees to the divorce and is willing to sign a “Waiver of Service”, you can simply mail the documents to your spouse or give them to your spouse directly if the prison facility allows visitor access to your spouse. Your spouse will be able to sign the “waiver of service”, which is only stating they are waiving the service, they are not waiving their rights in a divorce or agreeing to anything in the divorce papers, they are simply just saying they received the papers. The inmate will need to sign and have the document notarized, and then send the signed documents back to you. Often, there is a notary in the prison facility who can notarize the documents for the inmate.
What if my incarcerated spouse won’t sign the divorce papers?
If you have served the incarcerated spouse by a constable, sheriff, or process server, and your spouse does not sign and return the documents within the given time frame (20 days), then you can be granted a “default judgment”, or “default divorce”, which means you can proceed with the divorce without your incarcerated spouse’s participation. You will still need to draft a divorce decree which will need to be signed by the judge. Once the judge signs the final order, this will then need to be filed.
If both parties are in agreement to the divorce and agree on the terms of the divorce, this makes the process that much easier and quicker. Once the “waiver of service” is signed, the free spouse can draft the divorce decree and give to the incarcerated spouse to sign. Once signed by both parties and sent back, this can be filed with the court. Just like a normal divorce, there is a required 60-day waiting period. Once the 60 day waiting period has passed, you can request a court date to finalize the divorce. In some cases, if your spouse is incarcerated due to family violence, the 60 day waiting period can be waived.
If both parties are not in agreement to the divorce and do not agree to the terms of the divorce, the contested matters will need to be resolved. In most prison divorces, the judge will make the final decision about the custody, child support, and division of property and assets. If your spouse has been convicted of a felony and has been incarcerated for more than a year, the judge may award a greater portion of the material assets to the free spouse. This is not always guaranteed but is more common when there is an incarcerated spouse.
Will I have to see my incarcerated spouse?
This is another question we get asked often and it is an understandable question, too. While there are special cases, it is not as common for the incarcerated spouse to attend the in-person court hearings. Nowadays, they are generally able to Skype, Zoom, or attend the hearing by phone. If the inmate agrees to all of the terms of the divorce, everything can easily be filed and recorded without your spouse having to appear, at all.
In order to save money and time, it is incredibly important that the unincarcerated spouse have an experienced attorney to represent them, walk with them through the process, draft the legal documents, and ensure all items are filed following the correct timeline. If both parties are in agreement to the divorce and the terms of the divorce, this will also save the parties a lot of time and money on court costs and attorney fees. The best place to start in a divorce case with an incarcerated spouse is by scheduling a free consultation with an attorney who is experienced in handling these particular cases.
If your spouse is currently incarcerated and you are wanting to file for divorce, contact our office today. The Law Office of Chad Zubi, PLLC offers free divorce consultations and family law consultations, and we are standing by to help you. In your free consultation, Mr. Zubi will listen to your situation, answer all questions you may have, and guide you through the process. We always strive to get our clients the best outcome and your consultation is the best place for you to start. The Law Office of Chad Zubi, PLLC offers flexible payment plans to help you with your legal case. Contact our office at 832-777-8924 or schedule your free consultation HERE.
We currently serve Harris County, Montgomery County, Brazoria County, Galveston County, Ft. Bend County, Polk County, Liberty County, San Jacinto County, and other surrounding areas of Houston.
Family Law, Divorce, Custody, Child Support, Adoption, Divorcing an Incarcerated Spouse, High Net Worth Divorce, CPS, Kingwood Attorney, Houston Attorney, Texas Divorce Lawyer.
