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.
Grounds for Divorce Based on Incarceration
A Georgia divorce petition, also known as a complaint, must explain the spouse's reason for requesting a divorce. Accordingly, the divorce papers must state the grounds for divorce. In particular, a spouse's imprisonment for at least two years after a conviction for a crime of moral turpitude may serve as grounds for divorce. The state of Georgia lists a number of offenses as moral turpitude crimes, reflecting a criminal defendant's wickedness, depravity and lack of honesty. For example, murder, fraud and larceny are all crimes of moral turpitude in Georgia.
General Grounds for Divorce in Georgia
If a spouse would like to divorce a husband or wife incarcerated for a crime that does not qualify as a crime of moral turpitude, the spouse must use one of the other divorce grounds established by state law. Other divorce grounds available in Georgia do not require waiting until a spouse has been imprisoned for at least two years. For example, a no-fault divorce only requires stating a belief the spouses cannot repair their marriage. A spouse can petition for a no-fault divorce from an inmate at any time.
Georgia Divorce Forms and Procedures
A spouse divorcing someone in prison must complete the same paperwork required of any other couple starting a divorce case in Georgia. The spouse filing the divorce petition, known as the petitioner, must file the case in the proper county. According to Georgia civil procedure laws, a spouse should file for divorce in the superior court located in the county where the opposing party currently lives or, if the defendant has recently moved from the state of Georgia, in the county of the petitioner's residence. However, the county where the prison is located is not the opposing party's county of residence unless the opposing party previously lived in that county before incarceration. Upon the defendant's consent, the petitioning spouse may file her complaint in her own county of residence regardless of whether or not the defendant has moved from the state of Georgia.
Service of Process
A spouse filing for divorce must provide a copy of the divorce petition to the incarcerated spouse and the state's summons form; this step is known as service of process. The spouse must follow Georgia state laws regarding service of process. Service must take place according to the requirements set forth on the Sheriff's Entry of Service form used by the deputy or officer who serves the papers on the opposing party. The petitioning spouse must take care to address the divorce papers to the incarcerated spouse using the opposing party's full name, inmate identification number and address of the prison where the opposing party is serving time. Service of the petition gives the opposing party an opportunity to respond to the legal issues in the divorce.
Custody Issues Related to Divorce
If a married, incarcerated parent goes through a divorce in Georgia, the divorce may likely include child custody and visitation issues. Incarceration can affect a parent's custodial rights. For example, the state's child custody laws require a court to consider many factors when awarding custody to parents during divorce. The factors include the parent's relationship with the child and parent's ability to participate in the child's life. If a parent is in prison, the court might believe the incarcerated mother or father has a limited ability to parent the child. Furthermore, a lengthy term of incarceration can become a reason for the state to grant an involuntary termination of the incarcerated parent's rights.
References & Resources
- State Bar of Georgia: Divorce
- Georgia Code: Domestic Relations - Title 19, Section 19-5-3
- Judicial Branch of Georgia: Self-Help Resources: Domestic Relations
- Fulton County Superior Court Family Division: Tip - Methods of Service
- Georgia Code: Domestic Relations - Title 19, Section 19-9-3
- Attorneys.com: The Basics of Child Custody Laws in Georgia
- Child Welfare Information Gateway: Grounds for Involuntary Termination of Parental Rights
- Georgia Professional Standards Commission: Moral Turpitude
- LegalAid-GA.org: How to Get a Divorce
- National Resource Center of Children and Families of the Incarcerated: Directory of Programs Serving Children and Families of the Incarcerated
- LegalAid-GA.org: Child Custody and Visitation (Answers to Common Questions)
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