Is Imprisonment Grounds for Divorce?

By Heather Frances J.D.

If your spouse commits a crime and gets put in prison, you may not want to stay married any longer. While you can choose to remain married, you can also divorce your imprisoned spouse, though the exact grounds for the divorce may differ between states. Some states specifically list imprisonment as a reason for divorce while others simply allow no-fault divorces.

If your spouse commits a crime and gets put in prison, you may not want to stay married any longer. While you can choose to remain married, you can also divorce your imprisoned spouse, though the exact grounds for the divorce may differ between states. Some states specifically list imprisonment as a reason for divorce while others simply allow no-fault divorces.

No-Fault Grounds

Before a court can grant your divorce, it must have a reason, or grounds, for the divorce. Grounds can either be fault-based -- meaning one spouse did something wrong to cause the divorce -- or no-fault. Some states recognize only no-fault grounds upon which to base a divorce, so you cannot specifically list imprisonment as the grounds for your divorce. For example, all divorces in Michigan are no-fault on the grounds of "irretrievable breakdown" of the marriage, and the spouse who files for divorce does not have to prove the other spouse did anything wrong in order to get the divorce. North Carolina, on the other hand, only allows divorces for incurable insanity, which is rarely used, and the no-fault grounds of separation for at least a year.

Divorce is never easy, but we can help. Learn More

Fault Grounds

If your state offers the option to file under fault grounds, imprisonment is often on the list of available grounds, but the rules vary between jurisdictions. For example, New York law requires the imprisoned spouse to serve three consecutive years before a court can grant a divorce on this basis. In Massachusetts, divorce is available if your spouse is sentenced to five years or more -- even if he serves no time. Tennessee has no sentence length restrictions, but the conviction must be for a felony or must have made the spouse “infamous."

Choosing Grounds

Your state’s laws may determine whether it is more advantageous to file on fault or no-fault grounds. Since all states recognize some form of no-fault divorce, it may be quicker to file on no-fault grounds rather than wait for your spouse to serve a certain prison term to qualify to file on fault grounds. Even in states where the no-fault basis for a divorce involves a period of separation, the required separation time may not be as long as the necessary prison term. No-fault grounds may also be easier because they require very little proof, but fault grounds require you to prove your spouse was convicted and either sentenced or served the required length of imprisonment.

Child Support

While your spouse still has legal rights in your divorce proceeding, imprisonment may affect certain aspects of the divorce, including child support. A court can establish child support while your spouse is in prison, but the amount is likely to be a lesser amount than if your spouse was working. After your spouse is released from prison, you may request a modification to increase the support amount based on his post-imprisonment employment.

Divorce is never easy, but we can help. Learn More
Can You Get a No Fault Divorce if the Spouse Is in Prison in Arkansas?

References

Related articles

Examples of Grounds for Divorce

No matter which state you live in, you must have grounds to file for divorce. All states allow for "no-fault" divorce, meaning that neither spouse is held responsible for the marriage ending. Additionally, many states allow couples to request a divorce based on the fault, or marital misconduct, of one spouse. Depending on the state, finding one spouse at fault may affect the terms of the divorce.

How Long Do You Have to Be Separated to Get a Divorce in Virginia?

If your marriage is no longer working, you have the option of filing for legal separation or divorce. Unfortunately, in Virginia, these options are not described in such a straightforward manner. Instead, legal separation is known as "divorce from bed and board," while an actual divorce is called a "divorce from the bond of matrimony." Considering the similarity in terminology, it's easy to get the two confused. To ensure you meet the requirements for a divorce, particularly the length of separation required, it's important to know and understand the differences between the two.

What Can You Cite in a Divorce Besides Irreconcilable Differences?

Before a court will grant you a divorce, you've got to present a valid reason why your marriage should end. This reason is considered your "grounds" for divorce. All states recognize some version of no-fault grounds for divorce, too. In these instances, you do not have to blame your spouse for wrongdoing in order to terminate your marriage. Irreconcilable differences is a common no-fault ground, but it’s not available in all states so you may have to cite something else instead. The majority of states offer fault grounds for divorce while the remaining states and the District of Columbia are "pure" no-fault jurisdictions.

Get Divorced Online

Related articles

Is Impotence Grounds for Divorce?

Impotence is a traditional ground for divorce and it remains on the books in many states that still allow fault as well ...

Guide to Fault Divorce in Massachusetts

Before a Massachusetts court can grant your divorce petition, it must have a reason for the divorce, called grounds. ...

The 12 Grounds for a Divorce in Mississippi

Mississippi recognizes 12 fault-based grounds for divorce, and if you choose to file for divorce on one of these ...

The Code of West Virginia Regarding the Grounds for Divorce

West Virginia offers both fault and no-fault grounds for divorce. If the parties agree on the divorce, or one spouse ...

Browse by category