How to File for Divorce If Your Husband Is in Jail

By Christine Funk, J.D.

How to File for Divorce If Your Husband Is in Jail

By Christine Funk, J.D.

If you and your husband are no longer in a committed relationship, regardless of the reason, it might be time to take that next step by ending the marriage. Unfortunately, couples don't always stay together, and if you get to that point, it's okay. Understand that you are not alone, and countless people experience this in their lifetime.

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Although filing for divorce sounds like a single-step process, that's not the case. You must take several steps, especially if your spouse is incarcerated.

1. Determine the rules for filing if your spouse is incarcerated.

Contact a clerk in the family court in your county of residence, either in person or on the phone; they can help you locate the correct forms. These days, many counties also offer downloadable ones on their websites. Your first step is to determine whether, in your state, the basic documentation you use to file is different than the standard one. If it is different, then obtain a copy. If not, prepare a standard form.

2. Obtain proof of incarceration.

If a judge sent them there as part of a criminal case, you can obtain a copy of the court minutes reflecting the imposition of this sentence. Speak to the clerk of criminal court in the county in which they were sentenced about how to obtain a copy of the court minutes that indicate your spouse was sentenced. There may be a small fee imposed to obtain this document.

3. Fill out the form.

In every divorce, the couple must divide their property, assets, and debts. Couples who have children in common must address child custody and child support. Fill out the forms as required. Again, if you get confused, you can call the clerk's office or look online. Be warned, however; the clerks cannot provide legal advice.

4. File the form in accordance with the rules.

To do this, you must submit the completed paperwork to the court. You should include a copy of the document that proves their incarceration. You also have to pay a filing fee. Some jurisdictions waive it in certain circumstances, e.g. if you cannot afford it.

5. Serve your spouse.

Serving legal papers requires following a certain process. You cannot, for example, simply mail the papers to the jail. Instead, ask the clerk whether service is mandatory, given that your spouse is incarcerated. If it is a requirement, you can hire the local sheriff's office to serve the papers for you. This ensures the service is legal. If you do not properly serve papers, it can delay proceedings.

6. Attend required hearings.

Many states require at least one court appearance to finalize a divorce. However, this is not always the case. Depending on the state and the situation, the court may simply sign off on it.

7. Obtain a copy of the decree.

Make certain to obtain a certified copy of your final decree. This is your legal proof that you are no longer married to your former spouse.

Ending your marriage can feel like a daunting task. When considering your options, it is a good idea to first understand what is required of you, and the steps you must take in order to obtain a legal divorce from your spouse.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.