Getting a Divorce When Your Spouse is in Jail

Can I get divorced while my spouse is incarcerated?

Yes, absolutely. A spouse's incarceration does not pause your ability to get divorced, and - here's the part that surprises people - it doesn't necessarily prevent the case from proceeding as an uncontested divorce, either. The question, as always, is not where your spouse is located, but whether your spouse is ready, willing and able to sign the paperwork. Jails and prisons complicate the logistics; they don't change the law.

The cooperative incarcerated spouse

If your spouse is willing to sign, the case proceeds as a fairly normal uncontested divorce with some extra postage. I prepare the paperwork as usual, and the documents that require your spouse's signature - the Entry of Appearance (the document waiving formal service), the Settlement Agreement, and so on - are mailed to the facility. Missouri correctional facilities have notaries available to inmates, and documents get signed, notarized, and mailed back. It adds some time to the process - facility mailrooms are not known for their urgency, so budget a few extra weeks, give or take - but the case itself is the same case.

One common worry I can put to rest: your spouse does not need to be transported to court. In the vast majority of my uncontested cases, neither party appears in court at all, and that holds true when one party is incarcerated. No writs, no transport orders, no hearings with your spouse in an orange jumpsuit. The paperwork does the appearing.

The uncooperative incarcerated spouse

If your spouse won't sign, the case is, by definition, not uncontested - incarceration doesn't change that analysis either. The case would need to proceed the traditional way: your spouse would be formally served at the facility (the sheriff or a process server will know exactly where to find them, which is more than can be said for most Respondents), and the case moves forward through the courts with or without their participation. That's a different kind of case than the ones I handle, and per my standing advice - if you do not know that your spouse will sign, do not waste your money on me.

A few practical notes

• Get the facility details right. The full name of the institution, your spouse's inmate number, and the correct mailing address will save weeks of bounced mail.
• Communicate with your spouse first, if you're able. The process goes much more smoothly when the paperwork arriving at the facility is expected, rather than a surprise.
• The fee is the same. An uncontested divorce with an incarcerated spouse is still an uncontested divorce - starting at $850 without children, $1,050 with children, plus the $150 filing fee.

Thank you for reading. Please feel free to contact me for more information.