It’s estimated that over 1.9 million people are currently being held in prison or jail in the United States. That’s more than the population of the entire state of Rhode Island. With such a high population of incarcerated people, it’s no wonder that so many find themselves married to an inmate, whether they tied the knot before or after their spouse was detained. As such, there also is a surprisingly high rate of prison divorces. How does someone divorce a person in prison? Does the length of their sentencing count towards the required 1 year separation period? Can an inmate even file for divorce? Let’s see what the law says.
The Proliferation of Prison Romances
Over the past decade or so, as the rate of convicted people has risen, there have been numerous television shows and series that focus on married life while one spouse is in prison, as well as the consequences. Some of these shows include: Prison Brides, Prison Wives Club, and Love After Lockup. Often these shows are not based on fiction or fantasy. They are based on real life couples.
The media has also highlighted some infamous and notorious convicted felons and their prison marriages. Two members of the California-based Charles Manson cult, Susan “Sadie” Atkins and Tex Watson, received press coverage for their post-conviction relationships. Brothers Lyle and Erik Menendez, convicted of killing their multi-millionaire parents in 1996 in the family’s Beverly Hills mansion, both married while in prison.
Many married prisoners were already married prior to entering their facility. Some marry after their sentencing, whether committing themselves to their partner at the time or finding a love interest while serving their sentence. Studies show that the rate of recidivism goes down for inmates who are married. Unfortunately, it’s also been shown that the longer an inmate spends in prison, the more likely they will divorce.
Divorce and Prison
Just as one can marry in prison, one in prison can file for divorce or be sued for divorce.
The most commonly filed divorce prison action would involve the spouse who is not in prison suing the incarcerated spouse for divorce. In North Carolina, as in most states, there are no fault divorce laws. One spouse only needs to file a complaint and allege that one of the parties has been an NC resident for 6 months prior to the filing of the divorce action. A proper divorce complaint must also allege that the parties have been separated for one year and that at least one of the parties had the intention for the separation to be permanent at the time of separation. This can be satisfied while a spouse is incarcerated as long as both parties can agree on the date of separation. Fault grounds like adultery, abandonment, or criminal conviction do NOT need to be proven nor included in the document.
Thus, a divorce complaint can be filed by either spouse, whether incarcerated or not. The party being sued does have to be “served” with the divorce complaint and the summons. When the party being sued is in prison, it actually does make service a little easier. The inmate will be “at home” in prison, making delivery of the complaint easy since a deputy can enter a prison for document delivery. The defendant/inmate has 30 days to respond just as if he or she were out of prison. All additional paperwork can just be mailed to the party in prison. Most divorce actions do not actually require the parties to attend court.
However, other issues between the parties might be a little more complicated to handle. Items like property division and spousal support can often require back and forth negotiations. Child custody can require mediation. Despite that, these actions can still progress even if one of the parties is incarcerated. A judge can hear child custody and support matters, order alimony, and rule on property division, and agreements can still be reached when the court isn’t involved, albeit they can take a little longer than usual. Inmates can earn monies while in prison with their prison jobs, and those funds can be used to pay child support and spousal support.
Settling a Divorce from Prison
Just as the majority of divorcing couples settle their matters via a settlement and separation agreement, the same can happen between a couple when one spouse is behind bars.
Disgraced movie mogul, Harvey Weinstein, who at one time had a net worth of $300 million, married his second wife in 2007 and reached an out-of-court settlement with her in 2018. Weinstein and his wife had a pre-nup, but given the publicity of his sexual assault and rape charges and trials, a better deal was brokered by his wife. Legal experts opine that she was able to secure a $20 million deal because of the negative climate that engulfed her former spouse. Sordid tales of his sexual assaults against many in the movie/entertainment business led to numerous criminal charges against him in New York and in California. Many divorce experts think that Weinstein gave in and allowed his pre-nup to be set aside so that divorce legal fees could be saved to help pay for his criminal legal fees. Of course, his former wife was able to gain primary custody of their minor children.
Although many inmate divorces might not get the publicity or financial benefit of these infamous cases, there are lessons to learn. A person in prison can be sued and served. They can be the plaintiff and bring a lawsuit against his or her spouse. This might be challenging in that logistics and fees must be covered (an inmate is not going to receive a court-appointed lawyer for divorce related matters).
Additionally, the incarcerated spouse often doesn’t have the same amount of leverage as the spouse on the outside. Even though fault is not required to prove grounds for a divorce since courts today allow for no-fault divorces, the waste of martial assets on illegal activities could be the basis of a judge allowing a property division that is not 50/50 to compensate the non-guilty party for their innocence. And, of course, being in prison is going to hamper a parent’s claim to joint legal custody and joint physical custody with minor children – definitely while they are serving, at the very least.
Being incarcerated will not stop a divorce, but it may have a huge impact on the terms of the parties’ settlement. As such, it is strongly encouraged that both parties seek out their own legal counsel to help guide them through the process.
