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.

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.

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.

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


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.

Divorce is never easy, but we can help. Learn More
Can a Divorce Take Place in Texas if the Spouse Is Incarcerated?


Related articles

Rights of Divorcing Felons in Texas

A felon who is getting divorced in Texas has the same rights as any other person getting divorced in the state. However, if the felon is incarcerated at the time of the divorce, he can face some difficulties in exercising those rights. Further, if there are children of the marriage, the court might terminate the felon's parental rights as part of the divorce, depending on the crime he committed. Commission of a felony is a ground for divorce in Texas and could cause a court to award most of the couple's property to the felon's spouse.

Can a Third Party in Virginia Be Held in a Divorce Case in an Extramarital Affair?

If an extramarital affair leads to divorce, the jilted spouse might want to know whether Virginia laws provide a way to sue the third party, or the person involved in the affair with her spouse. Although adultery may become relevant to a divorce case, state law does not allow a spouse to sue the third party as part of the divorce proceedings.

How to File for a Divorce If Your Spouse Is An Inmate in New York State

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.

Get Divorced Online

Related articles

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 ...

Divorcing a Convicted Felon

The felony conviction of a spouse can be disrupting and damaging to a marriage, especially if the convicted person also ...

How to File for Divorce From Jail

You can file for divorce from prison, but meeting the filing and appearance requirements is more difficult. You usually ...

Is There a Public Notice for a Divorce in the State of Virginia?

When Virginia spouses divorce, both have an opportunity to be involved in the process, and mandatory notifications from ...

Browse by category
Ready to Begin? GET STARTED