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Texas Prison Divorce: Can You Divorce an Incarcerated Spouse?

Incarceration can strain a marriage, especially if someone is behind bars for months or even years. So it’s not a surprise when couples decide to throw in the towel and file for divorce in prison. In fact, a felony conviction is a ground for divorce in Texas.

In this article, we will explain how to get a Texas prison divorce and answer some frequently asked questions.

Can I file for divorce if my spouse is incarcerated?

Yes, you can file for divorce in Texas if your spouse is incarcerated. You do not have to wait until they are released. In fact, the process is not that different from a “regular” divorce with both parties in the free world.

You will need to file an original petition for divorce and have it served on your incarcerated spouse. To do this, you will need to provide the name and address of the prison facility where they are being held and their inmate identification number. You can then arrange for a constable, sheriff, or process server in the county where your spouse is incarcerated to deliver the divorce petition.

If you and your spouse are in communication and are in agreement about the divorce, it is possible for the inmate to “waive” the formal service of divorce papers. At that point, you can send a “waiver of service” to the inmate. The inmate can sign it, have it notarized (there are usually notaries in the prison facility) and send it back, signifying that they do not want to be formally served with divorce papers.

It’s important for the unincarcerated spouse to have an experienced divorce attorney to ensure that the Texas prison divorce is handled correctly.

What if the incarcerated spouse ignores my divorce petition?

If the incarcerated spouse is served divorce papers in prison but doesn’t respond within 20 days, you will be granted a “default judgment” or “default divorce.”

This means you can proceed with the divorce without your spouse’s input or participation. Your attorney will still need to prepare a divorce decree, which will later be signed by the judge and entered as an official court order.

Can a Texas inmate initiate the divorce process?

While the free spouse initiates most Texas prison divorces, it is also possible for an inmate to file for divorce. The process is a bit more complicated, but it can be done. The inmate usually has access to divorce forms in the prison library, which they can access and complete inmate divorce packets.

One of the biggest obstacles for an incarcerated person seeking a divorce is the service of process. The inmate will need to have someone outside of prison serve the divorce papers on the free spouse. This can be done by hiring a professional process server or asking a friend or family member to assist on your behalf. Once the papers are served, the divorce process is underway.

What if the Texas prison divorce is uncontested?

If the divorce is uncontested and both parties agree on the terms, it can be finalized relatively quickly. Once the divorce papers are served, the free spouse can have their attorney draw up the divorce decree and forward it to the incarcerated spouse. Once the document is signed by the prison inmate and returned, the attorney can file it with the court.

After the required 60-day waiting period in Texas, the matter will be set for court. Since your spouse is incarcerated, you and your attorney will attend and answer questions about the agreements between you and your spouse. After the judge grants the divorce, your ex will be sent signed copies of the divorce decree.

What if a Texas prison divorce is contested?

If both parties are not in agreement, then the divorce is contested and will need to be resolved. In most contested prison divorces, a judge will make final decisions about the division of property and assets, as well as child support and custody matters.

In Texas, a felony conviction is a ground for divorce. This means if your spouse was convicted of a felony and has been imprisoned for more than a year, the judge may award a greater portion of the marital assets to the unincarcerated spouse.

Can a Texas prison inmate attend divorce proceedings in person?

It’s possible, but not likely. In Texas, the incarcerated spouse doesn’t have an absolute “right” to appear in person at court hearings. They can seek permission from the court, but in this day and age, it’s more efficient and cost-effective for the inmate to attend by Skype, Zoom, or phone.

How long does a Texas prison divorce take?

Like a “regular” divorce, there is a 60-day waiting period from the date the divorce petition was filed. (That means it takes 61 days to officially get divorced in Texas.) However, if your spouse has been convicted of domestic abuse, a judge can waive the waiting period and speed up the process.

Need a Texas prison divorce? Contact us.

If you live in Fort Worth or the surrounding area and are seeking a Texas prison divorce, contact the attorneys Varghese Summersett Family Law Group. Our team of experienced attorneys has successfully guided hundreds of families through difficult times, and we can help you, too.

If your spouse is in prison, then you have probably had your share of hardships. We offer no-pressure consultations to help you understand your options and make the best decisions for your family. There is light at the end of the tunnel.

Call 817-900-3220 to speak with a skilled, compassionate divorce attorney today.

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