Divorcing a Convicted Felon

By Cindy Hill

The felony conviction of a spouse can be disrupting and damaging to a marriage, especially if the convicted person also receives an extended prison sentence. The resulting separation, along financial and emotional strain, can lead to divorce even among previously happy couples. Many states have special divorce rules pertaining to incarcerated felons. A prior felony conviction when a spouse is not incarcerated may also affect child custody proceedings.

No Fault Divorce

The divorce laws of every state vary, but all states have some form of no-fault divorce. No-fault divorce rules usually require both spouses to agree to the divorce, and to wait through some required period of separation before the no-fault divorce can be granted. A felony conviction does not deprive the convicted spouse of the legal authority to file for divorce or to agree to a no-fault divorce.

Incarceration as Grounds for Divorce

A felony conviction, especially if accompanied by an extensive prison term, has been legally-accepted as grounds for divorce in many states since the 19th century. Today, many states allow divorce from a convicted felon who is sentenced to jail, without requiring a waiting period. Other states allow divorce for grounds of incarceration only after the felon has actually served a number of years in prison. If the incarcerated spouse does not agree to a no-fault divorce, filing for divorce on grounds of incarceration may be the simplest legal course for the spouse seeking the divorce, as there is effectively no defense by which the incarcerated spouse can oppose a filing based on these grounds.

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Practical Considerations

Although an incarcerated spouse will not be able to appear at divorce hearings, an attorney can still represent him and he can fully participate in the no-fault divorce process. In some jurisdictions, the incarcerated felon may be able to request a court-appointed attorney for representation in a divorce proceeding. If the convicted felon is not incarcerated, and his conviction is for domestic abuse and involves a restraining order, the divorce court may have to make special provisions regarding communication between the parties in the divorce hearings.

Child Custody and Visitation

Incarceration of a parent creates financial and emotional hardship on the felon's children. While federal government programs seek to strengthen families by providing educational classes and mental and physical health treatment for convicted felons, many states have adopted statutes that permit a prompt termination of parental rights for incarcerated felons. Even if the convicted parent is not incarcerated, state family courts assessing child custody in a divorce proceeding will often presume that a prior felony conviction makes one parent unsuitable to receive child custody, and possibly even visitation with the child. Felony convictions will be taken into consideration by the divorce court in determining the best interests of the child.

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Do You Get an Automatic Divorce if a Spouse Is Incarcerated in Virginia?


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