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Can you divorce your spouse while they are still in jail?

When your spouse commits a crime, you may feel anger, fear and even shock. You may have had no idea that they were capable of such an act and may feel retroactively frightened about how vulnerable you were in the presence of someone capable of committing a serious crime. You may not want them to live with you again after they serve their sentence.

You may also feel angry about the danger they put you in and the fact that they have now abandoned your family. All of those emotions can make you realize that your marriage is effectively over, especially if your spouse will be in prison for years.

If you remained married until after your spouse is convicted and are now living alone, do you have to wait to file for divorce until they are done serving their sentence?

The Virginia family courts allow you to file for divorce with a spouse in jail

Divorce proceedings only require single party consent. In other words, while both of you have to agree to get married, only one of you has to decide the marriage is over for a divorce to occur. You can file for divorce even if your spouse cannot attend the divorce proceedings because of their incarceration. 

Some incarceration situations allow for a fault-based divorce

Virginia still allows an individual to file for divorce based on grounds of fault. While you can ask for a no-fault divorce, you can also receive a divorce where the courts affirm that the actions of one spouse are the direct cause of the dissolution of the marriage.

The conviction of one spouse of a felony offense is grounds for a fault-based divorce under Virginia family laws. Even if the offense is a misdemeanor, if your spouse will serve more than a year of incarceration, that also gives you grounds for a fault-based divorce.

Filing for divorce while your spouse is in prison or jail isn’t necessarily easy. Getting the support that you need during this difficult time can make it easier for you to secure a clean break and move forward from a marriage to someone whose legal problems will only hold you back.

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