Would an annulment be appropriate in your situation? Would a legal separation be less stressful than a divorce but still produce your desired outcome? You can walk through your options with an attorney if you haven’t made a final decision.
Your attorney will complete this for you if you hire one, otherwise you may want to consider a document preparer or similar service if you are representing yourself. The forms and types of petitions available to you will vary by jurisdiction.
File your divorce petition- You will do this at the courthouse with the court clerk. You will also need to pay a filing fee, unless you qualify for a fee waiver. If you have recently moved, check that you meet your state’s residency requirements before filing your divorce petition.
Your process server will need to go to the jail or prison where your spouse is incarcerated, and inform the front desk that they are there to serve divorce paperwork. You must also file proof of service with the court.
Your spouse will have 20-30 days to respond after the divorce petition has been served. Your spouse may agree to all the terms you requested in the petition, or may simply not respond. Or, your spouse may contest your divorce petition and request their own terms with the court. You will need to negotiate or mediate with your spouse to attempt to reach an agreement.
After the applicable mandatory waiting period, you can finalize an uncontested divorce. A contested divorce will take longer to finalize. If your spouse doesn’t respond to your petition, you can request a default judgment from the court.
One of the biggest factors determining the difficulty of your divorce from an incarcerated spouse is whether or not your spouse contests the divorce. When a divorce is uncontested, it means that the spouse served with the divorce petition, or the respondent, doesn’t make any objections to the terms requested by the spouse who filed the petition, or the petitioner. This is probably the situation you are hoping for if you are considering divorcing a spouse who is serving time. Your spouse will sign a consent decree, which will then be filed with the court. Your case can be finalized once the mandatory waiting period is complete.
Things will be more complicated if your spouse contests the divorce. Your Arizona Family attorney will need to negotiate with your spouse or their representative, which can possibly be assisted by mediation. Proceeding to trial will be more difficult when your spouse is incarcerated, and the court may need to make arrangements so your spouse can be adequately included. If your spouse fails to respond to the petition in time, you can ask the court for a default divorce. Your spouse may try to overturn the default, but this will be difficult if you can prove that service was proper.
Just because your spouse is in prison doesn’t mean that they aren’t entitled to reasonable notification when you file your divorce petition. Like any spouse who isn’t serving time, a spouse who is in jail or prison must be properly served with the divorce petition. Depending on your area, you may be able to have the sheriff serve your spouse. Your spouse’s prison may have a legal coordinator who can serve the divorce petition on your spouse. Otherwise, you will need to hire a private process server. That process server will go to your spouse’s facility and serve them with the divorce petition. You will need to provide the court with a proof of service.
You may be wondering how your spouse will attend divorce hearings from behind bars. Your spouse’s attorney may appear at hearings on their behalf, if they hire one. Plus, your spouse may also be able to appear telephonically at some hearings. Also, your spouse may also have a guardian ad litem represent them in court.
Your spouse has the right to service of the divorce petition, and to file (or not file) their response. However, your spouse can’t stop the divorce just because they want to stay married. Only one spouse needs to want a divorce for the court to grant it, even if you are in a covenant marriage- incarceration is grounds for a divorce in a covenant marriage.
Even if your inmate spouse doesn’t contest your divorce petition, there is a mandatory amount of time, which varies by state, that you must wait between filing your divorce petition and the divorce being finalized. For example, the mandatory waiting period in Arizona is 60 days. When your divorce is uncontested, or you obtain a default divorce, your divorce shouldn’t take much longer than the mandatory waiting period. But, this is only a minimum, and your divorce can end up lasting far longer than 60 days. If your spouse objects to your requests for issues like support payments and property division, negotiations can draw out your divorce for months, or even years. An experienced divorce attorney knows techniques and strategies for accelerating divorce negotiations with a stubborn spouse.
If your spouse isn’t going to contest the divorce and you don’t have significant assets and debts, you may be able to proceed with your divorce without legal representation. Admittedly, fighting a spouse for custody is less of a process when one parent is behind bar. However, Arizona is a community property state, meaning half of everything you’ve earned during your marriage is at stake. You may also be held responsible for debts that your spouse incurred in their name during your marriage. It’s essential that you understand your rights, obligations, and options before filing for divorce from a spouse who is in jail or prison. That’s where a reputable and experienced divorce attorney comes in.
You probably want your divorce to be completed as soon as possible, which means your divorce petition needs to be clear and meet all local requirements. Family law orders are burdensome to overturn, so it’s vital that your divorce petition is written correctly the first time. An attorney will take care of all of this for you, as well as service, negotiations, filings, and more. You may end up paying far more in the long run than the cost you save by not hiring a divorce attorney.
When you’re looking for compassionate, nonjudgmental legal service that achieves your best outcomes, all at an affordable price, schedule your free consultation with our firm. Contact our dedicated Arizona divorce lawyers to handle your case with care, and with payment options that will work with your budget. To learn more about the process of divorcing an incarcerated spouse, as well as information about our low cost payment options, call (480) 833-8000 to schedule your free initial consultation.
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