Ending a marriage is a major decision, and when your spouse is in prison, it adds another layer of complexity. You might be unsure how to file, whether your spouse can contest the divorce, or how their incarceration affects property and custody decisions. While the situation presents challenges, it does not prevent you from taking the necessary legal steps. The law provides clear procedures for moving forward, and with the right approach, you can begin the next chapter of your life with less stress and uncertainty.
Understanding Your Rights and Grounds for Divorce
Arizona allows for a no-fault divorce, meaning you do not need to prove misconduct or wrongdoing to end your marriage. If your spouse is incarcerated, their conviction does not automatically dissolve the marriage, but it may influence aspects of the process.
You have the legal right to file for divorce at any time, regardless of your spouse’s imprisonment. The court will still treat your case like any other divorce, following standard procedures for filing, serving documents, and reaching a resolution.
Your spouse’s incarceration may affect decisions regarding property, support, and parental rights, but it does not prevent them from participating in the case. If they are unable or unwilling to respond, the court may grant a default divorce, allowing you to finalize the process without their involvement.
Filing the Petition and Serving Your Spouse
The divorce process begins with filing a Petition for Dissolution of Marriage in the Arizona court that has jurisdiction over your case. This document outlines your request to end the marriage and may include proposals for property division, child custody, and support. After filing, you must legally serve your spouse with the divorce papers, even if they are incarcerated.
Service must be completed according to Arizona law. You can serve your spouse by certified mail with a return receipt or hire a process server approved by the prison. Some facilities have specific rules about serving inmates, so it is important to check their policies. If your spouse refuses service or cannot be reached, you may need to request alternative service through the court, such as publication.
Once served, your spouse has a set time to respond. If they do not, you may request a default judgment to proceed without them.
Handling Property Division and Spousal Support
Arizona follows community property laws, meaning assets and debts acquired during the marriage are typically divided equally. However, your spouse’s incarceration can complicate the process, especially if they cannot participate or have limited financial resources.
- Marital Assets: The court will determine how to divide property, including bank accounts, real estate, and personal belongings. If your spouse cannot negotiate, the court may decide without their input.
- Debts: You may not be responsible for debts your spouse incurred alone, but shared debts could still affect you.
- Spousal Maintenance (Alimony): If your spouse previously provided financial support, you may request spousal maintenance. However, their ability to pay may be limited while they are in prison.
A judge will consider fairness when making decisions, ensuring that neither party is unfairly burdened due to incarceration. If your spouse cannot participate, the court may proceed without them.
Child Custody and Support Considerations
If you share children, the court will prioritize their best interests when deciding custody and support. Your spouse’s incarceration does not automatically terminate their parental rights, but it will likely affect their ability to have custody or regular visitation.
- Custody: A parent in prison cannot have physical custody, but they may still retain legal decision-making rights. The court may grant sole legal custody to the other parent if the incarcerated spouse cannot make decisions for the child.
- Visitation: Some courts allow supervised visitation (parenting time), letter exchanges, or phone calls, depending on the circumstances and the child’s well-being.
- Child Support: If your spouse previously paid support, their payments may need to be adjusted if they lack income. You can request a modification through the court to ensure a fair arrangement.
The court’s primary concern is ensuring stability and financial support for the child.
Finalizing the Divorce
Once your spouse has been served and given time to respond, the divorce can move toward finalization. If they do not contest it, you can request a default judgment, allowing the court to grant the divorce without further input. If they respond, a hearing may be required to resolve disputes over property, custody, or support.
A judge will review the case, ensuring all legal requirements are met. If everything is in order, the court will issue a final divorce decree, officially ending the marriage. This decree outlines the terms of the divorce, allowing you to move forward with legal clarity.
Contact an Experienced Phoenix Divorce Attorney
Divorcing an incarcerated spouse presents unique challenges, but it is entirely possible with the right approach. At Cohen Family Law, we will guide you through each step and ensure the process is as smooth as possible. Contact us today to discuss your case and take the next step forward.
