While the state of Virginia does not provide an automatic divorce from an incarcerated spouse, the state provides two divorce grounds that are available for use in this situation. One or both spouses must reside within the state for at least six months before filing for divorce using either ground. While the basic procedures for divorce in Virginia are the same whether or not one spouse is incarcerated, there are some key differences that make divorcing an incarcerated spouse a little more complicated.
Beginning the Divorce Process
A full divorce in the state of Virginia where both parties have the right to remarry is a Divorce from the Bound of Matrimony. The process begins when one spouse files a Bill of Complaint for Divorce in a Virginia Circuit Court. The Bill of Complaint must state that one or both spouses have resided within the state for at least the past six months, that the filing spouse wants a divorce and the reason, or ground, for the divorce.
Grounds for Divorce
There are two grounds for divorce in Virginia that can be used to divorce an incarcerated spouse. Virginia's 'no fault' divorce ground is available when the spouses have irreconcilable issues between them. They must have lived apart for one year, or, if there is no jointly owned real property and no minor children of the marriage the couple need only have resided apart for six months. A spouse's conviction of a felony is the other divorce ground available for divorce of an incarcerated spouse. The spouse must have been convicted of a felony and been sentenced to incarceration for a least one year.
A copy of the Bill of Complaint for Divorce must be delivered to the other spouse, i.e., served, even if he is incarcerated. Usually the sheriff delivers the Bill of Complaint to the spouse in prison and files a return of service in the case as proof that the legal service requirement was fulfilled. Alternatively, if the incarcerated spouse is willing, the Bill of Complaint may be delivered to him in prison with a waiver of service form. By signing the waiver, the incarcerated spouse voluntarily gives up his right to be served in person with the Bill of Complaint, and to be served in person with notice of any other step in the divorce process, including hearings.
Guardian ad Litem
Any incarcerated person is considered by Virginia law to have a legal disability. As a result, when being sued for divorce, he is entitled under Virginia Rule of Civil Procedure 8.01-9 to a guardian ad litem, which is an attorney appointed by the court to protect the incarcerated spouse's rights and to make sure he is not taken advantage of during the divorce process. The services of the guardian ad litem (GAL) are usually billed at a reduced rate and will most likely be paid for by the spouse who is most able to pay, which is usually the non-incarcerated spouse. In certain circumstances, the court may order GAL services to be paid for by the state, which can then recoup the fees from the incarcerated person.
Divorcing From Jail
It is not always the non-incarcerated spouse who files for divorce. It is perfectly within the rights of an incarcerated spouse to initiate the divorce process. It is usually a time-consuming process, however, to sue for divorce from prison, because appearances in divorce court require criminal court approval, and special arrangements for transport and security. Hiring a divorce attorney from prison is also more difficult, as inmates are unable to contact the outside world at will. For this reason often the criminal attorney helps retain the services of a divorce specialist.