Divorce can be a complicated and messy process in general, but adding in a spouse who is incarcerated can make things even more complex. It is difficult but possible to divorce your spouse while they are in jail. Speak with an experienced Sparta divorce attorney for more information and representation during this process.
Is New Jersey a Fault Divorce State?
Some states are no-fault divorce states, meaning that fault is not a requirement for a spouse to file for divorce. New Jersey is considered a hybrid state because the law allows couples to file for either no-fault or fault-based divorces.
In NJ a couple can get divorced simply because they want to, or one spouse can claim a fault-based ground.
What Are Grounds for a Divorce?
There are grounds for both no-fault and fault-based divorce. If one or both spouses wish to file for a no-fault divorce they can do so on the grounds of:
- Separation of 18 months or longer
- Irreconcilable differences
- Irretrievable breakdown of the marriage
While it is not explicitly necessary, many people choose to file for fault-based divorce because of an action or inaction on the part of their spouse. If an individual wishes to file for a fault-based divorce, the following are some valid grounds.
- Cruelty
- Adultery
- Institutionalization
- Incarceration
- Abandonment
- Impotence (when the condition existed before marriage but was concealed)
If any of the above applies then you can file for divorce. Your spouse being incarcerated is a valid reason for a fault-based divorce.
How Can I Divorce My Spouse When They Are in Jail?
The legal process of divorcing your spouse when they are in jail can be complex. They must be incarcerated for at least 18 months before you can file for divorce on the grounds of imprisonment. The process includes the following steps:
- Obtain divorce forms from the family court local to you or your spouse’s location. Both standard forms and specialized incarcerated spouse forms are available.
- Obtain a copy of your spouse’s documentation committing them to jail, called the mittimus. This can be requested from the criminal court where they were convicted.
- Submit the divorce papers along with the mittimus and required fees.
- Serve the divorce complaint to your spouse via the sheriff’s office or certified mail.
- Attend a hearing with or without your spouse. Negotiations can be made regarding asset and debt division, child custody, child support, alimony, and more either in person, over the phone, or via written correspondence. A judge can also rule on these decisions.
- Once the divorce is finalized procure a copy of the final divorce decree.
Reach out to a Skilled Family Lawyer
During any divorce, you should equip yourself with an experienced legal team. When you are attempting to divorce your spouse while they are in prison you may feel even more overwhelmed and confused. Speak to a knowledgeable attorney who can help you navigate the legal process and advocate for you during this time.
