Can I File for Divorce if My Spouse Is in Jail?

Getting a Divorce Due to Incarceration

A marriage is a lifelong partnership, and when that partnership suffers, the marriage suffers. When spouses go to jail, they are stripped of their rights and freedoms, making it nearly impossible for them to uphold their marital roles and duties behind bars. Being a good spouse, partner, and parent is a lot to ask of anyone, especially an incarcerated spouse. While it’s normal for inmates to feel helpless in their marriages, it’s particularly difficult for their spouses.

When one spouse is incarcerated, the other spouse is left to deal with personal, professional, and familial responsibilities by themselves. Dealing with these day-to-day demands alone in a marriage can take a toll and strain the relationship to an irreparable point. If children are involved, it’s even harder to maintain a marriage when one spouse is in jail. Incarceration instantly makes one spouse an inmate and another spouse a single parent, therefore, it is not surprising that marriages struggle under these circumstances.

If your spouse is incarcerated and you’ve been pushed to your breaking point, you may contemplate getting a divorce. If you make up your mind and decide to go through with your divorce, what happens? How do you file for divorce when your spouse is in jail?

New York is a no-fault divorce state, although, spouses may still file on fault-based grounds. Grounds are another term for “reasons.” If you choose to file on no-fault grounds, you won’t have to provide evidence as to why a judge should grant your divorce. If you file on fault-based grounds, however, you must provide evidence.

For a thorough discussion on the grounds for divorce, read our recent blog, “Grounds for Divorce in New York State.”

One of the grounds for divorce is imprisonment. You can use this ground while your spouse is in prison or up to 5 years after your spouse was released from prison. If imprisonment is the reason you want to get a divorce in New York, your situation must satisfy the following criteria:

  • Your spouse is or was in prison for 3 or more years in a row
  • Your spouse must have been incarcerated after the marriage began

Many spouses choose to get a divorce and complete it before one spouse serves their jail sentence to make the process more efficient. Other couples try to fight for their marriage but later realize it won’t work out, so they must wait until their spouse serves 3 consecutive years in jail to be eligible to file for divorce on the ground of imprisonment.

If you are in this situation or dealing with something similar, we encourage you to discuss your questions and concerns with our Putnam County family lawyers. With years of experience under our belt, we can help you explore your divorce options and guide you through the process. To schedule a consultation, contact us at (845) 605-4330!

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