Book an appointment using SetMore

Getting a divorce in Texas when your spouse is in jail

A 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 factors include:

  1. money,
  2. stress,
  3. infidelity,
  4. 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 the jailhouse.

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 defaulted.

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, PLLC 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, PLLC 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.

Book an appointment with Law Office of Bryan Fagan using SetMore


Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Divorce Wasting Assets[4] If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: 13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them" Today!

Other Articles you may be interested in:

  1. Should I sign a Texas Premarital or Prenuptial Agreement?
  2. Common Questions about Texas Prenuptial and Marital Agreements
  3. Making Postnuptial Agreements Stick in a Texas Divorce
  4. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
  5. Dower Contracts and a Texas Divorce
  6. Can I sue my spouse's mistress in Texas?
  7. When is, Cheating Considered Adultery in a Texas Divorce?
  8. 6 things You Need to Know Before You File for Divorce in Texas
  9. Texas Divorce Morality Clause: Be Careful What You Ask For
  10. What does Insupportability or No-Fault in a Texas Divorce Mean?

Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers

The Law Office of Bryan Fagan, PLLC 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.

Our divorcelawyers in Houston 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles divorcecases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

Fill Out To Watch Now!

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.