Can I Get a Divorce While My Husband Is in Jail?

 Posted on February 19, 2025 in Divorce

It is a big deal to decide that you are ready for a divorce. If you have made that decision and even spoke to your husband about it but he ends up in jail, it can feel like any possible progress is grinding to a halt. The truth is that although getting a divorce while he is incarcerated might include some challenges and extra steps along the way, it is certainly possible. A knowledgeable Illinois divorce lawyer can help you understand more about your options and what you can expect.

How Do You Divorce an Incarcerated Spouse?

The divorce process includes the same steps regardless of whether your spouse is in jail when you are ready to begin. 

Step 1: File a Petition for Dissolution of Marriage

You need to file your divorce papers with your local court. Once you do so, your divorce process has officially begun.

Step 2: Serve Your Spouse with the Divorce Papers

Your husband has the right to be notified of the divorce, just as he would if he was not in jail. You can accomplish this by having a sheriff or process server deliver the papers to the correctional facility where he is being detained.

Step 3: Receive Your Spouse’s Response

Anyone served with divorce papers has 30 days to respond. That timeline remains the same even if your spouse is in jail. If your husband does not respond by the 30-day deadline, the court might proceed with your divorce without his participation.

Step 4: Draft a Divorce Agreement

If you and your husband have children or marital assets, you will need to decide how you want to handle child custody, child support, spousal maintenance, and the division of property. As in all divorces, you can submit a proposed agreement, and the court can approve it or decide that it is unfair and needs to be modified. 

This is one area where an incarcerated spouse can present some logistical challenges. Even though he is in jail, your husband still has legal rights and can have a say. If your husband contests the divorce or wants to be part of the discussions, the court might allow him to participate via live video conference. Scheduling this while he is not free to control his own schedule can be difficult and might hold up the process.

Step 5: Attend a Court Hearing

The court will decide whether your divorce agreement is fair, protects your children’s best interests, and can be approved or not. If your husband does not contest the divorce, this is fairly straightforward. If he does contest, you will go through a longer legal process until the court makes a decision. Once the court resolves all issues, the judge will sign the divorce decree, and your divorce is officially complete.

What Are the Unique Challenges of Divorcing an Inmate?

Divorcing an incarcerated spouse presents some unique challenges, including:

• Communication: It can be difficult to communicate with your husband or get his signature on legal documents. Even if he does not contest and is willing to agree to what you want in the divorce, he is subject to the jail’s schedule and rules.

• Child custody: Your husband’s time in jail will likely affect the court’s decision about granting him visitation rights. If he is given visitation, he may not want your children to see him in jail, or they may be afraid and unwilling to see him there.

• Property division: People typically have little to no active income while in jail, which can make it difficult to divide property and debts.

• Timing: Since your divorce requires the jail’s cooperation in enabling your husband’s participation, there will likely be delays throughout the process.

Contact an Arlington Heights, IL Divorce Lawyer

There is no reason why you should not move forward with a divorce just because your husband is in jail. However, it is useful to know what delays and other challenges you can expect along the way. An experienced Arlington Heights, IL family law attorney will work closely with you to ensure that your divorce serves your interests and protects your rights despite the added obstacles. Call A. Traub & Associates at 847-749-4182 to schedule a private consultation so we can get started.