Obtaining a divorce in Texas when one spouse is in prison or jail involves a similar process to a standard divorce, but there are additional steps and considerations due to the unique circumstances. Here is a brief breakdown of the process:
File the Divorce Petition
- File a Petition for Divorce with the district clerk in the county where you or your incarcerated spouse resides.
- Include information about your spouse's incarceration, such as their location and expected release date.
Serve the Incarcerated Spouse OR Obtain a Waiver of Service
- If your spouse is not in agreement with the divorce, they must be formally served with divorce papers. This can be done through a private process server or the sheriff’s office.
If the incarcerated spouse cannot be located or refuses to accept service, you may need to request service by publication or another alternative means of service.
- If your spouse and you have spoken and they agree with the divorce, you can send a Waiver of Service for them to sign and notarize so it can be filed with the court. This document will allow for you to bypass the need for personal service of the divorce petition on your spouse.
Wait for Your Spouse’s Response
- After being served, the incarcerated spouse has the Monday following the expiration of 20 days to respond with their Answer.
Defaulting Your Spouse
- If they do not respond, you may proceed with a default judgment, meaning the court can grant the divorce without their input. This can be done after 60 days has expired from the day the petition being filed.
- Most courts in Texas have very specific requirements in order for you to be able to default divorce your spouse. It is best to speak to an attorney about these specific requirements.
Mediation
Most courts in Texas require mediation. Many mediators can mediate via Zoom. You or your attorney will have to work with the prison to make sure your spouse is able to attend. At mediation, you will be given the chance to work out all the issues including property division and child-related issues.
Final Trial
If there is no agreement with your spouse, there will need to be a final trial where the court decides.
What are some issues that may come up during a divorce with an incarcerated spouse that may not come up in a traditional divorce?
- Attendance at Hearings and Mediations: Your incarcerated spouse may have a difficult time getting to court hearings and mediations. You or your attorney may have to have the court issue orders to facilitate their attendance at these events.
- Child Support: If you and your spouse have children and they will be incarcerated for a while, be aware that a court might not order child support to begin until they are no longer incarcerated.
- Child Custody: As the non-incarcerated spouse, you will have the advantage when it comes to having rights to the children in a divorce as well as possession and access.
- Timeline: Due to your spouse being incarcerated, there may be delays starting with serving the divorce papers to getting everything finalized. Sometimes a contested divorce where one party is incarcerated may take months longer than a traditional divorce.
Divorcing an incarcerated spouse can have additional logistical challenges that may lead to delays. Speaking to a family law attorney with experience in this area might help streamline the process. Hunt Law Firm is a team of skilled and knowledge advocates who can guide you through the process each step of the way – contact us today for assistance and to schedule a consultation.