How do I Divorce my Incarcerated Spouse in New Jersey?

Key Takeaways

You can divorce an incarcerated spouse in New Jersey; their imprisonment does not prevent or delay it.
You do not need the imprisonment fault ground (N.J.S.A. 2A:34-2(g)); most people file no-fault on irreconcilable differences, which is usually faster.

Going through a divorce is challenging for anyone involved, and it can feel even more complicated when one spouse is incarcerated. The good news is that having a spouse in prison or jail does not prevent you from getting divorced in New Jersey, and in most cases the process is more straightforward than people expect. It’s also important to understand that, because of New Jersey’s no-fault divorce option, you are eligible to seek a divorce, regardless of how long your spouse has been incarcerated. While incarceration is a fault ground on which you can pursue a divorce, many in New Jersey choose to file on the grounds of irreconcilable differences because the process is generally faster. Read on to learn more, and contact an experienced New Jersey divorce attorney for help with your situation.

When Can I File?

It’s important to understand that a common misconception surrounding these matters is that you must cite your spouse’s incarceration as the reason for the divorce, or wait until they have served a certain amount of time that your spouse has been behind bars for.

However, this is not the case, as you are eligible to pursue a no-fault divorce on the grounds of irreconcilable differences, regardless of whether or not your spouse is incarcerated. It’s important to understand, however, that irreconcilable differences must be present for six months prior to the filing.

Pursuing Fault Grounds

As mentioned, New Jersey does recognize imprisonment as a separate fault ground in N.J.S.A 2A:34-2(g). If you wish to file on these grounds, your spouse must have been imprisoned for 18 or more consecutive months after the marriage. If you do not file until after they have been released, you must not have resumed living together after. In practice, though, because you can pursue a no-fault divorce, many people choose that route instead.

Regardless of which ground you choose, your spouse must be properly served with the divorce papers and provided with adequate notice. Additionally, prison officials will be notified, and the court will determine if the incarcerated spouse can participate in any hearings that occur.

What Do I Need to File?

To start a divorce in New Jersey, you generally file a Complaint for Divorce (not a “petition,” which is the term some other states use), along with a Summons and a court information statement.

Once filed, the case will proceed like any other case, with the primary difference being that your spouse’s incarceration directly impacts how and if they can participate in court proceedings

What Is the Process Like?

To divorce an incarcerated spouse, the following steps are generally involved:

Obtain either the specific incarcerated-spouse divorce forms or standard divorce forms from the family court
Request a copy of your spouse’s mittimus, the document committing them to jail or prison, from the criminal court where they were convicted
Submit the divorce filing with the mittimus and the filing fee. If you need to serve the paperwork, you can arrange service through the sheriff’s office or, where permitted, by certified mail
At least one hearing will typically take place, and the court will decide whether the incarcerated spouse is transported or otherwise permitted to attend
Once the divorce is finalized, obtain a copy of the final judgment of divorce from the family court

If your spouse cannot or does not participate, the divorce can still move forward. Being incarcerated does not give a spouse the power to stop the divorce from happening.