When your spouse has been incarcerated due to a criminal conviction, such as a violent crime, you may be blindsided and overwhelmed. Moreover, you may realize that such a person is not you who originally married, and you may be considering a divorce. That leaves you to wonder if you can get divorced from someone in jail and what the process looks like. In New Jersey, filing for divorce while a spouse is in jail requires a strategic approach to ensure a smooth and fair resolution. However, it is possible. Read on to learn more about the legal considerations of divorcing someone who is in jail in New Jersey, as well as what to expect.
Key Takeaways
- Incarceration does not prevent a divorce in New Jersey, but it requires strategic planning. Both no-fault (irreconcilable differences) and fault-based (cruelty, abandonment) grounds can be used.
- Divorce papers must be served through the correctional facility, with the warden ensuring delivery. Proof of service is required, and alternative methods, like newspaper publication, may be used if needed.
- Incarcerated parents are unlikely to receive custody but may be allowed supervised visitation. Child support obligations remain, although payment may be delayed due to lack of income.
Can I File for Divorce From an Incarcerated Spouse in New Jersey?
Incarceration does not prevent a spouse from filing for divorce or serving divorce papers in New Jersey. The same grounds for divorce apply, including both no-fault and fault-based grounds. No-fault divorces typically cite irreconcilable differences, while fault-based divorces may include reasons such as cruelty, abandonment, or adultery.
When one spouse is in jail, divorce proceedings may face delays due to the logistical challenges of serving legal documents or coordinating court appearances. However, the process can move forward with careful planning and the assistance of an experienced divorce attorney.
Do keep in mind, however, that this is only possible for spouses who are serving their sentence for 18 months or longer.
Serving Papers to Someone in Jail in New Jersey
In order to begin the divorce process, you must serve the papers to the person you are divorcing. Since the incarcerated individual is in custody, they cannot be personally served at their home or place of employment. Instead, the divorce papers must be delivered to the correctional facility where they are held. New Jersey courts have specific procedures for this:
- Contact the correctional facility: Ensure the facility is aware of the legal documents being sent. The warden or designated personnel will be responsible for delivering the papers to the incarcerated spouse.
- Proof of service: You must obtain proof that the papers have been served, which is a requirement for moving forward with the divorce.
In some cases, if the incarcerated spouse cannot be located or refuses to participate, the court may allow service by alternative means, such as publication in a newspaper. A divorce lawyer in New Jersey will also assist you in serving the papers and will provide guidance when necessary.
What is the Process of Divorcing Someone Who is in Jail in New Jersey?
Once the papers have been served, proceeding can be a bit challenging. As mentioned, there are logistical complications. Secondly, you may need to receive permission from the NJ court to have your spouse appear in court for the divorce proceedings. Depending on why they are serving time, this can be difficult.
Other steps you may have to take include:
- Receiving specific divorce forms for an incarcerated spouse from the NJ family court. Standard forms may not apply.
- Requesting a copy of your spouse’s mittimus from the criminal court in NJ. A mittimus is the warrant that the sheriff used to deliver your spouse to jail.
- Submission of the divorce filing and mittimus, as well as a potential processing fee.
- Attend a special court hearing after requesting permission for your spouse to appear, if possible.
- Secure a divorce decree to make the divorce final.
Will an Incarcerated Spouse Have Child Custody in New Jersey?
Child custody and support are often the most pressing concerns in divorces where one spouse is in jail. In New Jersey, the courts prioritize the best interests of the child when making custody and visitation decisions. Typically, an incarcerated parent will not be granted custody, but they may be allowed supervised visitation if it is in the child’s best interest.
Child support orders may be affected by the jailed spouse’s inability to earn income. While New Jersey law requires both parents to financially support their children, a parent in jail may not have the resources to contribute. However, the incarcerated spouse’s obligation to pay support may not be automatically waived. The court may require them to pay as soon as they have the ability to do so, or modify the amount based on their circumstances.
Does an Incarcerated Spouse Have to Pay Alimony?
Alimony decisions are based on multiple factors, including the financial needs of both parties, the length of the marriage, and each spouse’s ability to pay. While incarceration may significantly limit an individual’s ability to pay spousal support, it does not automatically free them from the obligation.
If you are the spouse seeking support, the court may adjust the terms of alimony, but this will depend on your specific situation. If the incarcerated spouse had financial resources prior to being jailed, these assets might still be considered when determining support payments.
Contact an NJ Divorce Attorney Today to Learn More
When one spouse is in jail, getting divorced becomes significantly more difficult. That does not mean it is impossible, though. At Ziegler Law Group, LLC, we understand the unique challenges of divorcing an incarcerated spouse and are committed to helping you navigate the process.
Our team will guide you through each step, from helping you serve divorce papers to resolving financial and custody issues. We work diligently to protect your rights and achieve the best possible outcome for your case, whether you are the incarcerated spouse or the one seeking divorce.
If you are facing a divorce involving an incarcerated spouse, contact us today at 973-533-1100 or fill out our online contact form to schedule a consultation. Let us help you understand your options and secure your future.
