Can I Get Divorced if My Spouse Is Incarcerated?

Your spouse has recently been incarcerated, and you may be wondering if divorce is an option for you. Minnesota law does not require both spouses to be physically present or free for a divorce to proceed. In this post, we’ll walk you through the important steps to getting a divorce, including:

• Starting the divorce: You file a petition in Minnesota district court, just as you would in any other divorce case.
• Serving divorce papers: You can serve an incarcerated spouse through the correctional facility, often using certified mail or a process server.
• Your spouse’s participation: An incarcerated spouse has the right to respond to the divorce and may participate remotely.
• Resolving key issues: Custody, parenting time, support, and property division can all be addressed and resolved, even without your spouse’s direct cooperation.

Our team at Atticus Family Law understands that being in this situation can be very difficult. If you have further questions or need guidance throughout the process, we’re ready to take your call and discuss your

How Do You Start a Divorce When Your Spouse Is in Jail or Prison?

The process starts the same way as any other divorce in Minnesota. You file a Petition for Dissolution of Marriage with the district court in the county where you live. From there, your spouse must be formally notified of the divorce, which is where things get slightly different when incarceration is involved.

You do not need your spouse’s permission to file. You do not need them to agree. You simply need to follow the proper legal steps, and the court will handle the rest. An attorney can guide you through this process.

How Do You Serve Divorce Papers to an Incarcerated Spouse?

Serving divorce papers to a spouse in jail or prison is very manageable. A few common methods include:

• Certified mail through the facility: Many correctional facilities accept legal mail on behalf of inmates
• Personal service by a process server or sheriff: A process server can deliver the papers directly to the facility
• Acknowledgment of service: If your spouse cooperates, they can sign a form confirming they received the papers, which eliminates the need for formal service

Once your spouse has been properly served, the clock starts on their deadline to respond. If they do not respond within the required time, you may be able to proceed with a default divorce, meaning the court could grant the divorce without their participation.

Can an Incarcerated Spouse Participate in the Divorce Case?

An incarcerated spouse retains legal rights and can choose to participate in the divorce proceedings. Participation might look like:

• Filing a written response to the petition
• Submitting affidavits or other written statements to the court
• Requesting to appear remotely by phone or video for hearings

Courts are generally willing to accommodate remote participation. That said, if your spouse chooses not to engage, the divorce can still move forward. The court will not wait indefinitely for an unresponsive party.

How Are Custody, Parenting Time, Support, and Property Issues Resolved?

While divorcing an incarcerated spouse follows the same basic legal framework as any other divorce, the reality of prison time will heavily influence the court’s decisions. We understand how overwhelming it can be to navigate these complex issues, but please know that Minnesota courts are designed to protect your interests and your children’s well-being during this transition.

To help you understand what to expect, here is how the court typically handles the key aspects of your divorce:

• Custody and parenting time: The court’s primary focus is always the best interests of your children. Because of the incarceration, physical custody and parenting time will naturally be limited. Depending on the length of the sentence and the nature of the offense, parenting time may be supervised, suspended, or structured around their eventual release.
• Child support: An incarcerated spouse may still owe child support. Minnesota courts can “impute” income, meaning they assign an income level even if your spouse isn’t currently earning wages, to ensure your children receive the financial support they need.
• Property division: Minnesota follows equitable distribution rules, meaning your marital assets and debts will be divided fairly. If your spouse chooses not to cooperate, the court can still make these decisions without them so you can move forward.

As you prepare for this next chapter, gathering your financial records and documenting your spouse’s sentence details early on will help set you up for success. While the process may take some time, especially if your spouse contests any decisions, taking these steps now ensures your rights and your family’s future are fully protected.

Ready to Take the Next Step?

Divorcing an incarcerated spouse comes with its own set of legal considerations, but it is absolutely possible, and you have rights throughout the process. At Atticus Family Law, we work with clients across Minnesota to build a clear path forward, whether your spouse is cooperative or not. Schedule a consultation with our team today to talk through your situation and understand your options.