If your spouse is serving time in prison, you may be wondering what your rights and options are if you want to terminate your marriage and move on with your life. Divorce can already be emotionally and legally complicated, and one spouse being incarcerated can add extra challenges. However, New York law allows you to get a divorce even if your spouse is in prison. Understanding the process and actions required of you is crucial in protecting yourself and your future. Continue reading and speak with an experienced Suffolk County divorce lawyer for skilled representation.
Can I Get a Divorce in NY if My Spouse is in Prison?
Yes, you can file for divorce in New York even if your spouse is in prison. New York state law recognizes both no-fault and fault-based grounds for divorce. The valid reasons for divorce under NY law include:
- Irretrievable breakdown of the relationship for at least 6 months
- Cruel and inhuman treatment
- Abandonment
- Imprisonment
- Adultery
- Legal separation agreement
- Judgment of separation
Not only are you permitted to file for divorce while your spouse is in prison, but you can also use it as a valid reason to initiate the divorce. To use imprisonment as a divorce ground, your spouse must have been in prison for 3 or more consecutive years and convicted after the marriage began. You can use this ground while your spouse is in prison or up to 5 years after their release.
How Do I File for Divorce if My Spouse is in Prison?
To initiate your divorce, file a Summons with Notice or Verified Complaint with the Supreme Court in the county where you or your spouse lives. The papers must be “served” to your spouse, meaning they must receive official notice of your intention to dissolve the marriage. A process server or the sheriff can deliver the papers to the correctional facility, and then incarcerated individuals are generally served through the superintendent.
If served in New York, your spouse has 20 days to issue a formal response. If your spouse does not formally contest or accept the papers, you can request a default judgment and proceed without their participation. However, if they do respond, they can generally participate in the process through video conference, phone, or mail.
While a straightforward and uncontested divorce takes approximately 3 to 6 months in New York, the timeline could be extended if one spouse is incarcerated. This is due to mail delays, facility restrictions, court scheduling, and more.
Hiring a divorce lawyer is always important during a divorce case, but it is especially crucial if your spouse is in prison. The legal process can be extremely complex, so having a legal professional on your side will help you navigate the process. Reach out to a skilled attorney at Peter V. Mandi & Associates, Inc. for more information today.
