A question that commonly arises is whether a person can get married or divorced if the other person is in prison. These laws may vary by state, but generally speaking, marriage and divorce can be accommodated even if one of the spouses is in prison or jail. 

The U.S. Supreme Court has held that, in certain circumstances, prisoners have the right to get married while in jail or prison serving a term. The regulations involved in marrying an inmate can vary widely depending upon the institution as well as state laws. 

The general process typically involves: 

  • Requesting a marriage document; 
  • Providing the necessary documentation and support; and
  • Paying any applicable fees.

After permission to marry has been obtained, you will usually work with the prison facility’s Family Visiting Coordinator to arrange the actual ceremony.

Before pursuing marriage with a prison inmate, it is in your best interests to consult with a family law attorney in your state to discuss your options. There may be various details that apply to your situation that need to be worked out.

What are Conjugal Visits?

Conjugal visits are designated time periods that allow married couples to have time spent together while one spouse is incarcerated. This is allowed in many states and prison facilities; however, the practice is considered to be outdated and is slowly being phased out in many areas. 

States that still allow conjugal visits include California, New Mexico, New York, and Washington. However, even in these states, the availability of such visitation times may be subject to change. Conjugal visits are seen as a privilege, not a right, and can sometimes be taken away from individual inmates even if it is still allowed in the state. It may also depend on the reason behind the prisoner’s incarceration.

Thus, if you are considering marrying someone who is in prison, you may also want to ask a lawyer about the conjugal visit policies in your state or in the specific prison facility you may be visiting. Some facilities may have specific procedures regarding issues like ceremonies and other matters. 

Can a Prisoner Get Divorced?

It is generally possible to divorce someone who is in prison serving a sentence. The best approach in any individual case will again depend on the marriage and divorce laws of the state in which you live. Additionally, it would be beneficial to speak with a family lawyer in your state or region because of jurisdictional issues concerning where you can file for divorce. 

Generally speaking, incarceration is a legitimate ground for divorce in many states. These include Maryland, New York, Pennsylvania, Texas, and New Jersey. The length of incarceration necessary for divorce on the ground of incarceration varies from state to state, but is commonly around 1-3 years. 

Again, divorce and incarceration issues are complex matters that can vary from state to state. Be sure to consult with an attorney if you have any specific questions, concerns, or issues regarding these two matters and the way they interrelate. 

What About Support and Custody Issues?

An incarcerated spouse may also be ordered to pay child support and/or spousal support in a divorce situation. However, the incarcerated spouse generally will not have any physical custody rights while they are in prison, and therefore, no rights to receive child support payments.

If there was an existing child custody and/or child visitation arrangement in place prior to incarceration, this will need to be updated if one of the spouses enters into a prison facility to serve a sentence. The arrangement will need to reflect the incarcerated spouse’s new living arrangement as well as their inability to fulfill any custody and visitation duties. 

Lastly, if a spouse or former spouse owed child support payments before they were sent to prison, they can sometimes petition with the court to have the payment amounts modified to reflect their income amount during incarceration. 

What if an Incarcerated Spouse Refuses to Sign the Papers?

It is not necessary for a spouse who has been properly served to sign any divorce papers for the proceedings to move forward. If he or she refuses, then it is generally possible to obtain a divorce by default. Most courts will consider the fact that the incarcerated person cannot fulfill the role of a spouse, like being supportive and present. 

Again, due to the many complications that accompany divorcing an incarcerated person, please speak with an attorney to determine the best strategy available for you.

Do I Need a Lawyer for Help Regarding Marriage or Divorce?

If you are interested in marrying or divorcing an incarcerated person, you should consider speaking with a divorce lawyer in your area. They can help you to find out about your rights and options. Working with an experienced lawyer will help you understand the choices you have open to you according to state laws. They can help protect you, your family and your interests.