Provided you have been a California resident for at least six months, you have the right to divorce your husband – regardless of whether or not he is imprisoned at the time. You do not need to cite specific reasons for requesting a divorce. At one time, conviction of a felony was a ground for divorce in California, but this is no longer the case. California's no-fault divorce law allows any married individual who meets the residency requirements to obtain a divorce under grounds of irreconcilable differences.
The Divorce Petition
To begin the divorce process, you must file a divorce petition. According to California residency requirements, you must reside in the county in which you file the petition for three months preceding the filing. You may request a divorce petition from your county's superior court or your attorney, if you have one. The form requests information about your marriage, any children you and your husband have and your debts and assets. In addition to basic information about the life you and your spouse once shared, you must also enter your property and child custody requests on the initial petition. Fill out the petition carefully as you cannot change your requests after filing the paperwork.
Serving the Petition
After you file the divorce petition with the court, the court will issue you a summons. You must serve your imprisoned husband with both a copy of the divorce petition and the summons. You may request the sheriff's office serve the paperwork or hire a registered process server to deliver the paperwork to your husband in jail. You will need your husband's full name and date of birth. If you have your husband's California Department of Corrections number, providing this information helps facilitate proper service.
Your husband has 30 days to respond to the summons and divorce petition. If he does not respond, the judge will grant your requests in the final judgment after a period of six months. If your imprisoned spouse responds and contests the divorce, the process could take much longer. Although California law does not give a prisoner the absolute right to be physically present at any hearings related to the divorce, your spouse can file a motion with the court and request this right.
Your husband's incarceration does not deprive him of his basic rights during a divorce. Because of this, you must follow California law, which requires that you not remove your children from the state during the divorce proceedings without a court order or written consent from your husband. You also cannot alter your children or spouse's insurance coverage or dispose of property unless you must do so to pay for basic necessities or conduct business.
References & Resources
- The California State Library: State Grounds for Divorce (p.6)
- Fox Family Law: How to File for Divorce Part One – The Divorce Petition
- Warner Center Law Offices: Divorcing an Incarcerated Prisoner
- Legal Services for Prisoners with Children: Manual on Divorce Issues for People in California Prisons and Jails (p.6)
- Columbia Law School: Prison Marriage and Divorce
- California Courts: Divorce or Separation
- Comstock/Comstock/Getty Images