December 12, 2014 By Paul Wallin

It is possible to get a divorce if you or your spouse, or both of you, are in jail or prison. The process differs depending on whether you are incarcerated or not.

It is very stressful and difficult to attempt a divorce on your own, especially if you are incarcerated. Your imprisonment makes it difficult for you to obtain documents and attend court. If you decide to file for divorce, you should retain an experienced divorce attorney to develop a strategy for your divorce.

7 Ways a Divorce Attorney Can Help an Incarcerated Person


A divorce attorney can do all of the following for you:

  1. Attend court for you, when you cannot appear.
  2. Arrange for you to attend court.
  3. Work on your behalf to obtain and prepare necessary documents, such as receipts for property or a Property Disclosure form.
  4. Advise you on each of the steps that you must take for a successful resolution of your case.
  5. Help you develop a course of action.
  6. Advise you about any county-specific forms you need to complete.
  7. Arrange for personal service of documents on your spouse.

10 Steps an Incarcerated Person Should Take When Filing For A Divorce

  1. Go to the jail or prison library to obtain forms and assistance from the librarian.
  2. Complete a filing fee waiver or indigent affidavit form.
  3. Complete the primary divorce forms, which typically include a petition, summons to your spouse, and court information sheet. Do not sign the forms.
  4. Complete the county-specific forms. Do not sign the forms.
  5. Complete the waiver or affidavit to avoid being charged the divorce filing fee. Incarceration typically allows you to avoid the filing fee.
  6. Request the jail or prison’s legal service to file the divorce papers. You should receive the filed summons and blank service affidavit from the service’s staff.
  7. Request the legal service to personally serve the summons and a copy of the petition on your spouse. Alternatively, you can arrange for an individual who is over 18 and not related to you or your spouse to personally serve these papers on your spouse.
  8. Provide the legal service or your contact with the summons, a copy of the petition, and the affidavit for service. Have the legal service or your contact complete and file the affidavit in the court in which you filed for divorce after the service or contact has served your spouse.
  9. Arrange to attend the hearing in person, by telephone, or by videoconference. It is more effective if you appear in person, even if you have hired a divorce attorney. California law does not give a prisoner an absolute right to be present at hearings related to a divorce. You or your attorney can file a motion with the court to request that you be present. PC § 2625(e) gives an incarcerated parent the right to request that he or she be transported to the hearing. The judge makes the ultimate decision.[i]
  10. An incarcerated person does have an absolute right to be present at a proceeding that may terminate the person’s parental rights.[ii] An incarcerated person also has an absolute right to be present at a hearing in which his or her child may be adjudicated a dependent of the court.[iii] The presence of the incarcerated parent’s attorney in place of the incarcerated parent is insufficient.[iv]

If Only Your Spouse is Incarcerated

If only your spouse is incarcerated, you should talk to an experienced divorce attorney to determine how you should proceed. Your spouse is restricted as to his or her movements and ability to obtain necessary documents, talk to counsel, and file motions. This will likely slow the progress of the case.

4 Special Steps for Divorcing an Incarcerated Spouse

  1. Request that the criminal court provide you with a copy of the document that formally committed your spouse to jail or prison. This is called a mittimus. Attach a copy of the mittimus to the filed paperwork.
  2. Obtain the spouse’s full name, date of birth, and county jail number or California Department of Corrections number. Provide this information to the process server or sheriff’s office who serves your spouse paperwork in jail or prison.
  3. Determine whether there are any county-specific forms you must use to serve an incarcerated spouse. If so, complete these with the help of your divorce attorney.
  4. Do not remove your children from the state during divorce proceedings absent a court order or written consent of your spouse. Do not change your children or spouse’s insurance coverage or dispose of his or her property unless you need to in order to pay for basic necessities or conduct business. Keep paperwork so you can show the reason that you took any actions regarding insurance or property.

Call the Divorce Attorneys at Wallin & Klarich

At Wallin & Klarich, we understand the difficulties of filing for divorce if you or your spouse are incarcerated. If you want to get a divorce, you should call a skilled divorce attorney from Wallin & Klarich immediately. Our attorneys have over 30 years of experience in successfully helping clients through the divorce process. Our offices are located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. Call us today at (888) 749-7428 for a free phone consultation. We will be there when you call.

[i] Calif. Penal Code § 2625(e).

[ii] Calif. Family Code §§ 7800 et. seq. and Calif. Welfare & Institutions Code § 366.26.

[iii] Calif. Welfare & Institutions Code § 300.

[iv] In re Jesusa V. (2004) 32 Cal. 4th 588, 599, fn. 2. Id. at 622.

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