Can I Divorce My Spouse If He or She Is Incarcerated?

According to Domestic Relations Laws in New York, incarceration in prison does not preclude an individual from filing for divorce against a spouse or having divorce filed against him or her by a spouse. In fact, imprisonment for three continuous years or longer is acceptable grounds for divorce in New York. There are two options for divorcing a spouse who is imprisoned:

• If the sentence is for three years or longer and at least three years have been served, the non-incarcerated spouse can file for fault-based divorces on grounds of imprisonment.
• If the sentence is for less than three years or if less than three years have passed, the imprisonment grounds are not yet valid. But either spouse can file on no-fault grounds, citing irretrievable breakdown of the marriage (or the non-incarcerated spouse can wait the full three years before filing).

Additionally, the non-incarcerated spouse has up to five years following his or her spouse’s release from prison during which the incarceration grounds remain valid, if at least three continuous years of the sentence were served.

How do I initiate divorce from my incarcerated spouse?

First and foremost, in order to obtain a divorce from an incarcerated husband or wife, you must meet residency requirements in New York. As the spouse filing for fault-based divorce, you’ll have to serve your incarcerated spouse with the appropriate documents — a Summons, a Complaint and an Affidavit of Service — all of which your attorney can help you prepare.

Filing for divorce while incarcerated

If you are in prison and wish to divorce your non-incarcerated spouse, you can do so by citing irretrievable breakdown, or, if you have reason to believe that fault-based grounds such as adultery occurred, you can cite that. It should be noted that you are entitled to a court-assigned divorce attorney if you cannot afford representation on your own.