divorce is never an easy thing to plan. Aside from the sort of constraints it
puts on a family financially, there are children, the stability of the
home as well as the parties' own emotional well being that is damaged
as a result of entering into this process. Even under the best circumstances,
divorcing spouses are likely to find that their easy, no hassle divorce
can quickly turn into anything but.
It is typical when a married couple is considering a
divorce to have factors that are putting a strain on the relationship. Some typical
- children or family;
It’s common for clients will walk into our office and tell us about
whatever it is that is bringing them to the point of considering divorcing
their spouse. An atypical situation presents itself when a potential client
comes to us and says they want to
divorce their spouse but he or she is incarcerated. This can be an even more stressful
situation when one of the parties to a divorce case is incarcerated for
one reason or another.
Conviction of a Felony Can be a Fault Ground for Divorce
In Texas, when your spouse is convicted of a felony and is sentenced to
a period of confinement more than twelve months in length, this is grounds
for divorce in and of itself. Of course, you can
divorce your incarcerated spouse for any reason at all essentially- they need
not be confined by any particular length of time.
Divorcing an Incarcerated Isn’t that Different
In some ways, divorcing an incarcerated spouse is no different than divorcing
a spouse who is not in jail or prison. It is necessary to provide notice
to your confined partner by allowing them an opportunity to present counter
arguments via an Answer and providing notice to them of any upcoming court dates.
Some basics on getting notice of the proceedings to the incarcerated spouse
include getting a process server or law enforcement body who operates
in the field to pick the filings up from the courthouse to deliver to
Once you have made the decision to file for
divorce it is essential to actually file an
Original Petition for Divorce. Contacting a sheriff, constable or trusted process server in order to
serve the paperwork on your incarcerated spouse is necessary as well since
the person still has a right to in person service of process. An exception
to this rule is if your spouse has agreed to "waive" formal
process. At that point, a simple affidavit can be mailed to your spouse
which states that he or she agrees to waive formal process of service.
The affidavit must be notarized, but most facilities have a notary public
on site. Your spouse must still file an
answer to your petition, however.
As the author of this blog post will commonly tell clients- "Once
you file your divorce, it's a locomotive. And your spouse better get
on board or they'll get left behind." An answer must be filed
by the jailed spouse within approximately twenty days or they risk being
Also like most divorces, the jailed party does not have to respond to your
Original Petition for Divorce, but they then run the risk of the filing
party being able to earn a default judgment from the Court if no answer is filed.
So long as you provide notice of the proceedings to your spouse he or she
need not respond or participate for the
divorce to move forward. It is in their best interest to participate so that they
have a "seat at the bargaining table" but it is their prerogative
to participate or not. A divorce where one party has not participated
by filing an answer within approximately twenty days of being served with
a petition is known as a "default judgment"
The Incarcerated Spouse Might be Able to Attend Divorce Hearing
The incarcerated party may be able to gain a literal get-out-of-jail-free-card
in order to attend a court appearance or even a mediation, but this is
not guaranteed. If they cannot attend, a motion can be filed to allow
them to appear by telephone or even video conference if necessary.
The type of crime in which they are being incarcerated for factors into
whether or not they will be allowed to attend. Fun fact- if your spouse
has been convicted of a felony that carries a penalty of at least twelve
months in jail you can cite that in your petition as grounds for the divorce.
No Automatic Right to Attend Hearings
Unfortunately, the incarcerated spouse does not have an automatic right
to attend any hearings in court. It is possible for a court to order the
incarcerated person's appearance at a hearing if they are asked by
the inmate. In this age of technology, appearing by telephone or Skype
may even be possible depending on the circumstances and judge.
The final step in the process is to have a
Final Decree of Divorce drafted where property, debts, and the children are dealt with. It is
best to have an experienced and qualified family law attorney representing
you so that your rights are protected but also so that the divorce process
can progress efficiently. The attorneys with
The Law Office of Bryan Fagan devote their practice to persons who are facing difficult situations in
the realm of family law and are eager to assist you.
The attorneys with the Law Office of Bryan Fagan are well equipped to handle
your divorce case- whether or not your spouse is in jail. From filing
your Original Petition for Divorce to completing a Final Decree of Divorce,
our attorneys are well versed in all areas of divorce law in the State
of Texas. Please contact our office today to learn more about how we can
assist you and your family.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Should I sign a Texas Premarital or Prenuptial Agreement?
- Common Questions about Texas Prenuptial and Marital Agreements
- Making Postnuptial Agreements Stick in a Texas Divorce
- Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
- Dower Contracts and a Texas Divorce
- Can I sue my spouse's mistress in Texas?
- When is, Cheating Considered Adultery in a Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
- Texas Divorce Morality Clause: Be Careful What You Ask For
- What does Insupportability or No-Fault in a Texas Divorce Mean?
Law Office of Bryan Fagan | Spring Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Spring, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Spring, Texas,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and