Can you get a divorce if your husband or wife is in jail or prison?

Every so often we get asked the question: “My spouse is in jail – can I get an annulment or a divorce while they’re in there?”  The laws in Tennessee and Mississippi are very clear on that matter – in Tennessee, the statutes state, as grounds for divorce, “Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary.” 
(Tennessee Code – Volume 6A, Title 36, Sections 36-4-101 and 36-4-103)For Mississippi the statutes read much the same:“Being sentenced to any penitentiary, and not pardoned before being sent there.”
(Mississippi Code – Sections 93-5-1 and 93-5-2)

Generally we advise against attempting to obtain an annulment on the grounds of a spouse’s imprisonment, as an annulment is much more difficult to get.  It is a much simpler process to obtain a “no fault” divorce (based on the grounds of “irreconcilable differences”) than it is to get an annulment. 

When pursuing a no fault divorce, all you have to do is have your attorney complete an marital dissolution agreement, sign it and have your spouse sign it.  You are not required to see your spouse – we can get the paperwork sent to them in their facility, and include envelopes for its return.  This option is best when you and your spouse agree on a divorce, child custody arrangements, and property division.  We recommend you seek a divorce lawyer that offers a flat fee service for this process.  If you and your incarcerated spouse are in disagreement over whether or not to get a divorce, how to handle child custody, or who gets what property, you also have the option of filing for a “fault” divorce, on the grounds of “conviction and imprisonment.”  In this case there will be more negotiation, more court visits, and it is likely that the court will order all parties into mediation to resolve any disagreements.  With this type of divorce, you will have to show proof of your spouse’s conviction and imprisonment.  At most divorce lawyer’s firms the fees for this kind of divorce will be on a retainer basis.

The thing to remember from all of this is that it is possible to get a divorce from a spouse in prison.  If they have been convicted of a felony and there is some disagreement involved in the divorce, you are able to seek a divorce based on the fact alone that they are in prison for a felony.  (Remember: they must still be in prison at the time of filing for divorce!)  As your attorney we are able to get paperwork to and from them, and even to keep your address out of all filed documents to keep you as safe as possible. 

Call us today at 901-754-1340 if you have any questions on this or other divorce topics.        

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  1. My husband is in prison and has left me with paying many debts associated
    with his business. I have met each of his debt obligations, and, have
    had to go back to school for retraining as I worked in his business since
    its founding. I have endured much pain and suffering through this ordeal
    and have spent a lot of savings, etc. I feel entitled to all of our assets
    and home because of the suffering I have had to endure. He will acquire a
    an inheritance, trust fund and property, so, he will be taken care of upon
    his return. Due to the nature of this crime, I feel that my differences
    are irreconcilable. I have invested all of my married life in his business
    and I do not want to end up with nothing in return. Most of my employment
    was uncompensated as I worked as a love of labor to him and his profession.

    It is no doubt impossible for you to make any judgements, but, is it
    possible for one spouse to get 100% of assets in special situations?

  2. Amy,

    It’s possible that you MAY be able to recover more than the normal 50% in your situation. However, the scope of your question is more than I can go into in this response.

  3. Christina says:

    Is it free to get a divorce if my husband is in prison for 12yrs? How do i go about getting a divorce with him being in prison?

  4. Christina,

    There seems to be a common myth out there that you are entitled to a free divorce if your spouse is in jail. I once even had someone come to my office and tell my that it was “the law” that I had to accept her divorce case for $1 because her husband was in jail. But this is a myth, and is completely untrue. No matter if your spouse is in jail or free as a bird you don’t get a free divorce.

    Thanks for your comments and for checking out my Memphis divorce lawyer website.

  5. What is the procedure or law of getting a divorce from someone who has been detained and is not a US citizen, and the Goverment is trying to deport because of a past felony crime conviction. I am worried if I serve papers my spouse will try to take 1/2 of my assets. I have been the main provider and spent a great deal of money on attorney fees for them. Us being married or divorced does not effect the outcome of the deportation judgement either way. Thanks in advance for your advise.

  6. I’d love to help you. But that’s something that would definitely require some research and considerable amount of time to try to find an answer to. And unfortunately that’s time I just don’t have right now.

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