With over 90,000 adults incarcerated in California, the state’s family courts often address common matters of family law for inmates, including divorce. An individual’s incarceration status does not mean they aren’t entitled to their rights in a divorce proceeding. California is a no-fault divorce state, and one spouse being in prison is enough for the courts to consider the marriage as having irreconcilable differences. While more often it’s the spouse of an incarcerated person filing for divorce, it’s also not uncommon for an inmate to file for divorce while incarcerated in California.
California’s Divorce Requirements Also Apply to Inmates
In general, divorce proceedings for incarcerated individuals are the same as for those who are not imprisoned, though it’s much more challenging to meet the filing and court appearance obligations for imprisoned individuals. California has several requirements that spouses must meet before the divorce proceedings may begin:
- At least one spouse must have lived in California for a minimum of 6 months before the filing date
- One spouse must have resided within the county where the filing takes place for at least 3 months prior to filing for divorce — incarceration in a California jail or state prison for three or more months automatically meets this requirement for inmates.
- One spouse has to claim irreconcilable differences in their marriage as grounds for divorce
If an inmate’s marriage circumstances meet these requirements, they can begin divorce proceedings even while incarcerated. Prison Legal Services can help an incarcerated person to obtain the papers necessary to begin the divorce proceedings.
Common Problems for Inmates Filing for Divorce in California
While an incarcerated spouse retains the legal right to file for divorce, they do not have an absolute legal right to attend divorce hearings, which is a common problem for inmates filing for divorce. While a judge’s discretion may allow the inmate to attend the hearing either in person or through phone or teleconference, they are just as likely to decline the request. Also, incarceration status means inmates do not have the right to seek custody of any children from the marriage.
It may be difficult to acquire the proper paperwork to file for divorce while incarcerated. Unlike a criminal case, an incarcerated person is not entitled to a lawyer for a civil case. Inmates can use the prison’s legal services or if they have the means to obtain the services of a Los Angeles divorce lawyer with experience in inmate divorce, the attorney can help with the filing and legal proceedings. Otherwise, some prison libraries have the paperwork available for inmates to begin the process. In some cases, prison legal services offer free representation to help inmates.
What is the Best Way to File for Divorce While Incarcerated?
If communication between the inmate and spouse is possible, agreeing to an uncontested divorce makes the process much easier when one spouse is incarcerated. Depending on the terms of the inmate’s sentence, they could file a later petition for a modification of the original agreement if they wish for shared custody or visitation. The best chance of accomplishing this is after they’ve completed their sentence and shown that they have a stable lifestyle, job, and housing.
Since an inmate cannot request custody while incarcerated, an uncontested divorce is their best choice. In most cases, spouses do not need to appear before a judge for an uncontested divorce and the unincarcerated spouse can consult with an attorney and attend a hearing if the judge requires one.
Child Visitation for an Incarcerated Parent After Divorce
In many cases, a judge allows visitation between a divorced incarcerated parent and their children. For inmates seeking visitation, it’s beneficial to contact the facility’s family visiting program or child visitation center in order to have a plan in place for visits. A judge may look more favorably at the request with an outlined plan for a child’s visits to the prison.
Navigating California’s divorce law can be challenging even in the best of circumstances. For an inmate with the means, hiring an experienced family law attorney is the best way to ensure a smooth process.