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Can you file for divorce if spouse is in jail?

On Behalf of | Jul 4, 2024 | Divorce |

Imprisonment can cause a significant strain on a marriage. If you are considering divorce and your spouse is currently incarcerated, you might wonder if it is possible to move forward with the process.

New York recognizes seven grounds for divorce, and imprisonment is one of them. So yes, you can seek a divorce under specific circumstances.

Imprisonment falls under no-fault divorce

To use your spouse’s imprisonment as grounds for divorce, there are rules attached to this option that you will need to factor in before filing, such as:

  • The spouse is in prison for 3 years in a row or more after your marriage began
  • Any pre-marital jail time would not count
  • A 5-year window to file exists after spouse’s release from jail
  • You still need to serve them with divorce documents properly

If the sentence is less than three years, you may still have options, such as an irretrievable breakdown of the marriage. Incarceration would not be a factor on this ground, but the court may consider the length of the separation.

Another pertinent consideration before you can file is New York’s residency requirement. This requires that at least one of the spouses is a New Yorker or have lived in the state for at least one year.

Divorce often needs legal expertise

The divorce might not be straightforward even with an incarcerated spouse. There could be issues regarding child custody, spousal maintenance or property division that require legal expertise.

While New York law allows you to file for divorce based on this ground, it is crucial to understand the specific requirements and procedures. An experienced New York divorce attorney can guide you and advocate for your best interests throughout the proceedings.