Do You Get an Automatic Divorce if a Spouse Is Incarcerated in Virginia?

By Jennifer Williams

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.

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.

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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.

Service

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.

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References

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How to Get Divorced From Someone in Prison in Georgia

To divorce a spouse who is currently in prison, a husband or wife must follow the divorce laws and civil procedure laws of Georgia. The general requirements to divorce an incarcerated spouse are the same as the requirements to divorce a spouse who is not in prison. However, incarceration may affect court location and the process of serving divorce papers on the other spouse. In addition, incarceration can impact custody rights decided during a divorce.

Divorcing a South Carolina Inmate

If your spouse is incarcerated in South Carolina, you still can get a divorce under most circumstances. Your divorce will not be much different than it would be from any other spouse. However, the court may take your spouse's incarceration into account when resolving custody-related matters. If you claim separation as grounds for divorce, your spouse can attempt to stop the divorce by claiming the separation was involuntary due to his imprisonment.

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The Domestic Relations Laws of New York State permit either spouse to file for a divorce even if one is an inmate in state prison. As with any other divorce action in this state, there are certain criteria that must be met in terms of residency and grounds, and there are further stipulations if one spouse is incarcerated. If you are not sure how to proceed, consult an experienced divorce attorney for additional guidance.

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