How to Divorce Someone in Jail in Texas

Are you wondering how to divorce a spouse who’s behind bars in Texas? This kind of divorce has unique challenges, but you don’t have to face them alone. A trusted divorce attorney can handle all the legal details on your behalf, protect your rights, and help you move forward with confidence.

Can You Divorce Someone in Jail in Texas?

Yes, you can divorce someone in jail in Texas. State law allows you to file for divorce based on several no-fault or fault-based grounds. One of these fault-based grounds is a felony conviction. If your spouse has been convicted of a felony and has been in prison for at least one year, you can file for divorce on that basis. However, even if your spouse wasn’t convicted of a felony or isn’t serving a long sentence, you can still proceed with a divorce by citing other grounds. For example, you could file for a no-fault divorce on the grounds of insupportability, also known as “irreconcilable differences.” You could also file for a fault-based divorce on other grounds, such as cruelty or adultery.

How to Divorce Someone in Prison

If you want to divorce a spouse who is in prison in Texas, the process is similar to any other divorce, with some extra steps to account for their incarceration. Here’s what you’d need to do:

• Ensure You Meet Texas’ Residency Requirements: Before you begin, make sure you meet Texas’ residency requirements. At least one spouse must have lived in Texas for six months and in the county where you are filing for at least 90 days. If your spouse is in prison in Texas and has lived there long enough, you can file in the county where they are incarcerated.
• Identify Your Grounds for Divorce: You will also need to decide whether to file for a no-fault or fault-based divorce. You can file for no-fault divorce in Texas by stating that the marriage is “insupportable.” However, you can also file for divorce based on fault grounds such as adultery, cruelty, or your spouse’s felony conviction and incarceration. 
• File the Divorce Petition: Your next step will involve filing a divorce petition with the district court in the county where you or your spouse live. After you complete and submit your petition, the court will officially start your divorce case. An attorney can handle this process on your behalf to take the pressure off you and reduce the risk of filing errors.
• Serve Your Spouse with Divorce Papers: Once you file your petition, the next step is to serve your spouse with the divorce papers. Since they are in prison, you will typically need to hire a process server or work with law enforcement to deliver the papers to the prison. Each facility usually has its own process, so it’s essential to check with the prison to identify the proper procedures. However, if your spouse is willing to cooperate, they can sign a waiver of service, and you won’t need to go through the formal process of serving them.
• Wait for Your Spouse’s Response: After your spouse receives the divorce papers, they have 20 days to file an official response with the court. If your spouse responds, they can choose to contest the divorce, raise their own claims, or agree to the divorce terms. If they do not respond within the 20-day window, you might be able to proceed without their participation, and the court can issue a default judgment in your favor.
• Negotiate Divorce Terms or Let the Court Decide: If your spouse disputes the divorce terms, you might need to negotiate through your attorneys or go to court for a contested divorce. If they do not contest the divorce, you and your spouse can agree on the terms, and the judge can approve your agreement. The court can also issue temporary orders during this time if you need to make immediate decisions about important matters like children or finances.
• Finalize the Divorce: If the court approves your terms or your spouse doesn’t respond, the judge will set a final hearing date. At this hearing, the judge will review the case, ask any necessary questions, and issue the final divorce decree. Once the judge signs the decree, you must file it with the court clerk to officially end your marriage. After that, the divorce is complete, and you are no longer legally married to your incarcerated spouse.

How to Serve Divorce Papers to Someone in Prison

To serve divorce papers to someone in prison in Texas, you need to follow specific steps. You cannot serve the papers yourself. Instead, you must hire a process server, sheriff, or constable to deliver the papers to the prison where your spouse is held. You’ll need to provide the server with accurate details, such as your spouse’s name, inmate number, and the facility’s address.

Each prison has its own procedures for serving papers, so it’s important to contact the facility and confirm the proper steps. The server will deliver the papers directly to the prison, where the staff will ensure your spouse receives them. Once your spouse is served, the server will file a return of service with the court to confirm the papers were properly delivered.

If your spouse is cooperative, you can skip the service requirement by having them sign a waiver of service, which acknowledges they are aware of the divorce proceedings.

How an Attorney Can Help If You Want to Divorce an Incarcerated Spouse

Divorcing an incarcerated spouse in Texas can involve extra challenges that aren’t present in a typical divorce case. An experienced divorce lawyer can make the process smoother and help you avoid common pitfalls by: 

• Determining the best grounds for divorce based on your situation
• Preparing and filing your initial divorce petition correctly and promptly
• Gathering evidence to support a fault-based divorce if necessary
• Handling the service of divorce papers to your incarcerated spouse
• Representing you and advocating for your interests in negotiations
• Advising you on temporary orders for custody or financial support during the divorce
• Preparing you for court appearances and representing you at any hearings

Contact a Texas Divorce Lawyer Now

If you’re ready to move forward with divorcing an incarcerated spouse in Texas, Balekian Hayes, PLLC, can help. Our team is here to guide you through each step of the process and protect your rights. Contact us today for an initial consultation so we can answer your questions and provide the legal support you need to get through this challenging time.