Divorce is always complex, even when parties are in agreement about the divorce and pursue it jointly. When one party is incarcerated, the process of filing for divorce can be especially confusing. If you’re divorcing an incarcerated spouse in Massachusetts, our divorce attorney at the Law Office of Heather M. Ward can help. Please call today to learn more about your rights and options, as well as what to expect throughout the divorce process. 

Incarceration As Grounds for Divorce in Massachusetts

The first thing that’s worth knowing about divorcing an incarcerated spouse in Massachusetts is that the incarceration itself may serve as grounds for divorce. While you do not need to prove fault in order to seek a divorce in our state—you can merely claim the irretrievable breakdown of the marriage—incarceration, or “confinement for a crime” under Massachusetts statute, is grounds for divorce. Talk to your divorce attorney about whether it makes sense for you to file for divorce based on this, or if you should file on no-fault grounds. 

The Process of Divorcing an Incarcerated Spouse

In addition to making a decision about on what grounds you’ll pursue the divorce, you’ll also need to consider the logistics of divorcing an incarcerated spouse. 

Just like any other divorce, if you file for a divorce, you will need to ensure that your spouse is served with the divorce papers. After the incarcerated spouse is served with the divorce papers, they have the right to retain legal counsel. As the divorce proceeds, the incarcerated spouse may be granted leave in order to attend hearings, although this isn’t guaranteed. If leave is not granted, then the incarcerated spouse may be able to attend the hearings through a video conferencing system, or their lawyer may provide representation at the hearings on their behalf. 

Keep in mind that a divorcing couple will need to resolve the same issues in a divorce that all divorcing couples would encounter, regardless of whether one party to the divorce is incarcerated. This means that you and your spouse will need to come to an agreement—or get a court order—regarding child support, child custody, spousal maintenance, and division of property and debts. 

How Does Incarceration Impact a Divorce Judgment? 

The incarceration of one spouse may significantly impact a divorce judgment.

For example, a judge will clearly not award child custody to a parent who is incarcerated. While the non-custodial parent would normally be ordered to pay child support, they may not have the means to do so as a result of their incarceration.

The same is true for spousal support: even if the non-incarcerated spouse was financially dependent on the incarcerated spouse throughout the course of the marriage, the incarcerated spouse may no longer have the financial means to pay support.

Division of property and assets is the issue in a divorce that will likely be least impacted by the incarceration. Even if one party is incarcerated, they still are entitled to an equitable division of marital property. 

Call Our Divorce Lawyer in Massachusetts Today 

Divorcing an incarcerated spouse can prove challenging. To learn more about the process for divorcing an incarcerated spouse and why working with an attorney is in your best interests, call the Law Office of Heather M. Ward directly today at (617) 903-8955 or send our law firm a message online.