It is possible to file a divorce when a spouse is in jail. You do not have to have a specific reason to divorce, such as your spouse’s felony conviction, to file a California divorce. In other words, California’s no-fault divorce laws allows married couples to divorce simply because they no longer get along or they no longer want to be married. In this regard, most couples file a California divorce due to “irreconcilable differences.” However, the married couple must meet California’s residency requirements to file for divorce. Read on to learn more about how to file divorce when a spouse is in jail.

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Steps to File Divorce When a Spouse is in Jail

The divorce process starts when one of the parties files a Petition for Dissolution with the court clerk. First, the one of the parties must live in the county where they are going to file the petition for at least three months before the filing. There is also a 6 month residency requirement in California. In the petition, the petitioner must include information about how long the couple was married, whether they have minor children and list any community and quasi-community property assets and debts. Asking for property division, child custody and visitation, and spousal support is also part of the petition.

Serve Spouse in Jail

Once the petitioner files the petition with the court, they must arrange to serve the Summons and Petition on the respondent. If the respondent is in jail, the petitioner can hire the sheriff’s office or a registered process-server to deliver the paperwork to the person while in prison. The Petition will need the respondent’s California Department of Corrections number, full name, and date of birth to give to the process-server. You may also serve the party in jail through the Litigation Coordinator at the jail. Refer to this informational sheet for more details on how to serve legal documents on a confined offender through the Litigation Coordinator.

The respondent will have thirty days to respond to the petition by filing an answer with the court. If the respondent fails to respond, the petitioner may ask for a default judgment. On the other hand, the respondent may choose to file an answer and contest the divorce. Of course, the parties may also agree to all the issues and have the case completed as an uncontested divorce. In this regard, the respondent can sign a Marital Settlement Agreement to finish the case without the need for any court hearings.

Schedule and Attend Required Hearings

If the parties do not agree, the petitioner may need to schedule court hearings on issues of child custody and visitation, the payment of spousal support, and the control of the property until the divorce is finished. The party in jail can file a motion requesting to be present at court hearings. Alternatively, the incarcerated spouse may need to hire a lawyer to make court appearances on his behalf.  Lastly, if the couple cannot agree and settle the issues between themselves, the court will schedule the divorce for a trial. Keep in mind, however, a divorce cannot be finalized until six months after the date the respondent receives the petition and summons.

In conclusion, remember that being incarcerated does not deprive a party of his/her fundamental legal rights during a divorce. California family law provisions must be followed regardless if a party is in jail.

Contact A People’s Choice for help completing the documents you need to file divorce when a spouse is in jail. Most California residents are capable of finalizing their own divorce with our help. You can save yourself thousands of dollars in legal fees by working with an experienced legal document preparer. Call us at 800-747-2780.

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