Divorcing a spouse who is incarcerated can feel overwhelming, but it is possible under New Jersey law. While imprisonment can complicate the communication, paperwork, and court appearances required in a divorce, there are clear procedures that can be followed to ensure the process is completed even when one spouse is serving time. If your spouse is incarcerated and you’re wondering whether you can get divorced, continue reading and consult with an experienced Bergen County divorce lawyer at Feitlin, Youngman, Karas & Gerson, LLC today.
How Can I Get Divorced in NJ if My Spouse is Incarcerated?
Under New Jersey law, incarceration does not prevent you from obtaining a divorce. If your spouse is currently serving time in jail or prison, you can initiate the divorce process the same as any other situation, by filing a Complaint for Divorce in the Family Division of the Superior Court of New Jersey in the county where you or your spouse last lived.
After filing for divorce, you must serve your spouse with the paperwork, meaning officially notify them that you have initiated the divorce process. Because your spouse is in custody, you will send the documents to the correctional facility’s legal mail department. Address them to your spouse with their inmate ID number. They have 35 days to respond to the papers and either agree to or contest the terms. If they do not respond, you can be issued a default judgment. However, if they do, you may have to negotiate the terms or attend hearings.
If you need to attend a hearing, your spouse can appear by video, written statement, or through representation by legal counsel.
Is Incarceration a Legal Ground for Divorce in NJ?
In New Jersey, individuals filing for divorce can file based on no-fault or fault-based grounds. If your spouse is in prison, you can file a no-fault divorce, which means that you do not have to prove any misconduct on the part of your spouse. Instead, you can simply claim that you have irreconcilable differences.
However, incarceration is a valid fault-based divorce ground as well. Under N.J.S.A. 2A:34-2, you can get divorced based on the “Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant’s release, the parties have not resumed cohabitation following such imprisonment…”
This means that if your spouse is in prison for 18 or more months, you can file for divorce based on their incarceration. You can use this ground even after they are released, given that you remained separated and did not cohabitate once they were out of imprisonment.
If you have questions or concerns about your legal rights regarding divorce when your spouse is in jail or prison, reach out to a skilled family lawyer for more information today.
