Fairfax Divorce Attorney Claudia Zucker Writes About Divorcing An Incarcerated Spouse

Not surprisingly, most marriages do not survive the long-term incarceration of one of the spouses. Either spouse can petition for divorce if other is incarcerated. However, there are a few distinct differences that come into play when one of the parties to a dissolution of marriage is incarcerated.

Guardian Ad Litem Requirement

Because a person who is incarcerated is considered to have a "disability," they are required by law to be provided a guardian ad litem. The guardian ad litem is an attorney who represents the imprisoned spouse throughout the divorce proceeding to make sure that his or her rights aren't violated. Although access to the guardian ad litem is required, the Commonwealth does not pay for this service. The non-incarcerated spouse is responsible for the attorney's fees. Most divorces attorneys in Fairfax and other parts of Virginia can recommend another lawyer to act as a guardian ad litem on the prisoner's behalf.

Other Grounds for Divorcing an Incarcerated Spouse

• The spouses have been separated and apart for one year.
• The spouses have been separated and apart for six months with no children in common and have a fully endorsed settlement agreement incorporating all issues between the two of them.
• The spouse committed adultery.
• The petitioning spouse can demonstrate that cruelty by the other spouse has occurred.
• One spouse deserted the other.

In order to finalize a divorce in Virginia, the parties must have been separated for one year with the intent to remain permanently separated at the time of separation and that intent must continue until the present time. The separation period may have begun before the inmate's period of incarceration. For example, a husband is arrested for domestic battery in January, and his wife (the victim) leaves him immediately after the arrest. Even if he doesn't begin serving his sentence until July, the preceding six months can count towards the separation requirement.

Divorces in the Commonwealth of Virginia are complicated—more so if one of the spouses is incarcerated. If your spouse is in prison and you intend to petition for divorce, you need to first consult an experienced Virginia family law attorney for expert legal advice.

Virginia Divorce and Family Law Attorney Claudia Zucker

Do you need a divorce attorney? Do you have questions about divorcing an incarcerated spouse in Virginia? We invite you to contact us today at (703) 596-1005. We're always just a phone call away.