Yes, you can get divorced while your spouse is incarcerated.  For whatever reason it is a common misconception that if your husband or wife is in prison you cannot get divorced until they are released.  This is completely untrue.  While having a spouse in jail does change the divorce process, and can sometimes make it more complicated, you should not be discouraged from getting a divorce simply because your spouse is incarcerated.


So what changes when you seek a divorce while your spouse in prison?  Well, there is one major difference and two minor ones.  The major difference is that in the eyes of the Commonwealth of Virginia your incarcerated spouse is considered to have a “disability.”  That means that they are entitled to a Guardian ad litem (GAL), or legal guardian.  You may be familiar with GALs because they are commonly used in divorce cases to represent the interests of any children involved.  The GAL’s job with an incarcerated spouse is the same, the GAL must represent the interests of your spouse while they are behind bars.  An important consideration is that you spouse in jailwill typically be required to pay for the cost of the GAL that represents your incarcerated spouse.  The only exception is that the state will pay for the GAL if your spouse was convicted of a crime after your marriage, you or your children were victims of the crime, and your spouse will be incarcerated for more than one year.  Once a GAL is appointed for your incarcerated spouse the rest of the divorce process is generally the same as if your spouse was not in prison.  The GAL takes on the role of your spouse’s lawyer and will communicate with your attorney.


While the divorce process is generally the same after the appointment of the GAL there are two minor differences worth noting.  First, the incarceration of your spouse gives you a fault-based ground for divorce.  In Virginia you can use this fault-based ground for divorce when your spouse was convicted of a felony after your marriage, your spouse is incarcerated for more than one year, and you have not resumed living with your spouse after the conviction.  Having a fault-based ground for divorce will mean that the one-year statutory separation period does not apply.  It can also limit any spousal support owed and result in a more favorable equitable distribution of the marital property.  The second minor difference involves service of process.  Obviously because your spouse is incarcerated they cannot be served in a traditional manner.  Typically, an incarcerated spouse will have to waive service.  If they refuse to do so their GAL and the person in charge of the facility where they are incarcerated will have to be served. 


As you can see having an incarcerated spouse might complicate your divorce a bit, but it is not a significant obstacle and should not dissuade you from seeking a divorce.  An attorney at Smith Strong, PLC can advise you on the best course of action going forward.  Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).