Mary Carollo: Can I Divorce My Spouse If He or She Is In Jail?

The short answer is yes. Yes, you can divorce your spouse if they are in jail. According to Domestic Relations Laws in Utah, 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 Utah.

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 Utah. 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.

Understanding Your Children’s Legal Rights

Minor children under the age of 18 years old are afforded certain rights to protect their best interests as they grow up. It is important that divorcing parents understand the legal rights of their children so that they can report any violations to their attorney or local authorities. The following are several key legal rights of kids:

Right to proper care: The state of Utah has laws in place that protect the fundamental needs of children. When an individual becomes a parent, they are responsible for providing proper shelter, food, clothing and health care to their child. Parents who do not provide these necessities for their children may have parental rights taken away.

Right to education: All children have a right to attend school. In the case of disabled children, schools must provide special education for the child whenever possible. Divorced parents are responsible for ensuring that the child is properly enrolled in school and facilitating all necessary transportation and financial support needed to secure an education.

Right to legal representation: If you fear your child may be abused or neglected while in the other parent’s care, you may enlist the support of an attorney who can help you modify custody orders with the help of a judge. The court places the best interests of children as a top priority in all custody and child support proceedings.

Right to court-ordered visitation: When a judge grants a noncustodial parent visitation rights, it means that the child is legally permitted to spend time building a relationship with the parent. Parents with custody cannot interfere with visitation schedules or attempt to restrict the child’s access to the noncustodial parent.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.