How to Divorce Someone in Prison in Arkansas

This article addresses the questions that both inmates and their spouses or partners may have about the process of divorcing someone who is incarcerated. We guide you through the unique challenges and considerations involved in divorcing a spouse in prison.

Divorcing a spouse who is incarcerated presents distinct emotional and legal challenges. While the fundamental grounds for divorce remain unchanged, the circumstances of incarceration can complicate communication, access to legal resources, and court proceedings. This article aims to clarify the steps involved in divorcing someone in prison, highlighting essential legal considerations and potential obstacles to ensure the process is handled with clarity and efficiency.

Can I File for Divorce If My Spouse Is in Prison?

Yes, you can file for divorce if your spouse is in prison. The process generally follows the standard procedure for filing for divorce but requires specific considerations due to your spouse's incarceration. Here’s what you need to know, keeping in mind that the process may vary slightly from state to state.

Serving the Divorce Papers

The most significant difference when divorcing an incarcerated spouse is how to serve the divorce papers. Typically, you must serve the papers in person; however, because your spouse is in prison, you will likely need to adhere to the prison's protocol for serving legal documents. This often involves coordinating with the prison administration to ensure the documents are delivered directly to your spouse.

In Arkansas, serving divorce papers to an incarcerated individual generally requires you to follow the specific rules set forth by the prison. This may include utilizing the prison's internal mail system or having a designated officer deliver the documents. It's essential to check with your local court or consult a lawyer to understand the precise procedure for serving papers to an inmate in your area.

Grounds for Divorce

In Arkansas, while the grounds for divorce do not change due to a spouse's incarceration, imprisonment is recognized as a specific ground for divorce. According to Arkansas law, a spouse can file for divorce if the other spouse has been convicted of a felony and sentenced to a term of imprisonment of one year or more. The duration of the sentence and the time already served can be relevant factors in this context.

Legal Representation and Responses

Your incarcerated spouse has the right to legal representation and can respond to the divorce filing. However, the response process may be more challenging due to their situation, which may involve appointed legal representatives or utilizing prison legal aid services if available. Their ability to actively participate in court proceedings might also be limited, potentially resulting in hearings being conducted via teleconference or through written statements, depending on Arkansas laws and the court's discretion.

Court Proceedings

Court proceedings in Arkansas may be adapted to accommodate the incarcerated spouse's situation. The court may allow for remote participation in hearings or establish alternative methods for the incarcerated spouse to provide their input. It’s essential to inquire about these accommodations early in the process to ensure that all parties can participate as fully as possible, facilitating a fair and equitable divorce process.

Can Incarceration Be the Reason for the Divorce?

In Arkansas, while the state allows for no-fault divorces, the grounds for divorce do not necessarily require proving wrongdoing by your spouse. You can cite "irreconcilable differences," which does not necessitate specifying the reason for the marriage dissolution, including incarceration. Thus, in no-fault divorce situations, the fact that a spouse is incarcerated does not directly affect the grounds for divorce, and the process remains similar to that of any no-fault divorce.

However, Arkansas also recognizes fault-based grounds for divorce, and incarceration can be cited as a specific reason. According to Arkansas law, a spouse may file for divorce based on the other spouse's incarceration if they have been convicted of a felony and sentenced to a term of imprisonment of one year or more.

Factors Influencing the Grounds for Divorce

The requirements for citing incarceration as grounds for divorce in Arkansas include:

• Duration of Incarceration: The spouse must have been imprisoned for at least one year to use this as a ground for divorce.
• Type of Crime: While the nature of the crime does not directly affect the grounds for divorce, it can influence other aspects of the divorce proceedings, such as asset division, alimony, or child custody arrangements.

Can an Inmate File for Divorce While Incarcerated?

Yes, an inmate can file for divorce while incarcerated in Arkansas. They have the right to initiate divorce proceedings by submitting the necessary legal documents to the court. Although inmates may face logistical challenges—such as obtaining legal representation and participating in hearings—correctional facilities typically have mechanisms in place to assist inmates with legal matters, including divorce filings. It’s important for incarcerated individuals to reach out to prison legal aid services or resources available within the facility to facilitate the process.

How Can My Spouse Attend Hearings in Prison?

If your spouse is incarcerated in Arkansas and needs to attend divorce hearings, there are several ways they can participate, depending on the capabilities of the correctional facility and the court's procedures. Many courts in Arkansas allow incarcerated individuals to attend hearings via teleconference or video conference, which enables them to participate in proceedings without physically leaving the correctional facility.

This accommodation ensures that the inmate's legal rights are upheld and provides them with an opportunity to be heard during the divorce process. Specific arrangements for this participation are typically coordinated between the court and the correctional facility, aiming to facilitate the inmate's involvement in compliance with legal requirements and the interests of justice. It’s important to communicate with the court and the facility to understand the procedures and ensure that everything is set up correctly for your spouse’s participation.

Impact on Assets and Children

How Does a Spouse in Prison Impact Child Custody?

The incarceration of a spouse can significantly affect child custody decisions in Arkansas, as courts prioritize the child's best interests. An incarcerated parent's ability to provide a stable and safe environment for the child may lead to considerations of alternative custody arrangements. However, the court will also take into account several factors, including the nature of the conviction, the length of the sentence, the relationship between the child and the incarcerated parent, and any efforts made to maintain that relationship during incarceration. The ultimate goal is to make decisions that support the child's welfare and emotional well-being, which may involve supervised visitation or limited custody arrangements depending on the circumstances.

How Does a Spouse in Prison Impact Spousal Support?

An incarcerated spouse's ability to pay spousal support in Arkansas is significantly affected by their loss of income and limited earning capacity while in prison. When determining spousal support obligations, courts consider an individual's current income and their ability to pay. Therefore, if the incarcerated spouse is typically responsible for paying support, the court may adjust the support order, potentially reducing or suspending payments during their time in prison. However, the obligation to pay spousal support does not automatically disappear; courts will reassess the situation upon the spouse's release, considering their employment status and ability to pay at that time.

How Does a Spouse in Prison Impact Child Support?

In Arkansas, the incarceration of a spouse similarly affects child support obligations due to the incarcerated parent's decreased ability to earn income. Courts recognize the financial constraints of imprisonment and may adjust child support orders accordingly. If the incarcerated parent is responsible for child support payments, the court might reduce, defer, or temporarily suspend these payments while they are in prison, taking into account their limited earning capacity. However, these adjustments are not automatic; the affected parent or the custodial parent must file a request for modification with the court. The court will evaluate the incarcerated parent's current financial situation, the duration of their sentence, and the needs of the child before making a decision. The aim is to balance the child's financial needs with the realistic payment capabilities of the incarcerated parent.

How Does a Spouse in Prison Impact Asset Division?

A spouse's incarceration can influence asset division during a divorce in Arkansas, though the effect is more indirect compared to spousal or child support adjustments. The primary consideration in dividing assets is the equitable distribution of marital property, which aims to be fair, though not necessarily equal. While incarceration itself does not change the fundamental principles of asset division, the circumstances surrounding the incarceration—such as the length of the sentence and the incarcerated spouse's earning potential upon release—may influence the court's decisions regarding equitable distribution. For instance, if the incarceration leads to a significant reduction in the family's financial resources or if marital assets were depleted due to criminal activities leading to incarceration, these factors could be considered in the division process. The court may also take into account the needs of the non-incarcerated spouse and any children to ensure that their financial security is adequately addressed in the division of property.

Are There Any Reasons Not to File for a Divorce While Your Spouse Is in Prison?

Deciding whether to file for divorce while your spouse is incarcerated involves various considerations rooted in emotional, financial, and logistical factors that are particularly relevant in Arkansas:

• Hope for Rehabilitation: You may believe that your spouse's time in prison could lead to personal growth or rehabilitation, potentially improving your relationship in the long run.
• Financial Concerns: Initiating a divorce can incur significant legal costs and financial uncertainties, especially regarding asset division, spousal support, and child support adjustments. The financial implications of divorcing an incarcerated spouse, who may have limited earning capacity, can be daunting.
• Impact on Children: Concerns about the psychological and emotional effects on children may deter you from filing for divorce. You might prioritize maintaining a stable family environment, despite one parent's incarceration, to support your children's well-being.
• Complexity of Legal Process: Divorcing an incarcerated individual in Arkansas presents unique challenges, such as serving divorce papers and ensuring the spouse's participation in legal proceedings from prison. These logistical hurdles can be overwhelming.
• Social and Moral Considerations: Personal, religious, or cultural beliefs about marriage and divorce might influence your decision. You may feel inclined to support your spouse during their incarceration despite the difficulties.
• Benefits of Waiting: You might see advantages in delaying the divorce until your spouse is released. This could result in a more straightforward legal process, the potential for more amicable negotiations, or a clearer assessment of your financial and emotional readiness for divorce.

Each individual's circumstances and motivations are unique, making it essential to weigh these factors carefully when considering whether to file for divorce while a spouse is incarcerated.

If Arkansas Has Both Fault and No-Fault Divorce, Does It Matter If I Apply for Divorce on Fault-Based Grounds?

In Arkansas, where both fault-based and no-fault grounds for divorce are recognized, the choice between the two can significantly impact the divorce process and its outcomes. While no-fault divorces allow couples to dissolve their marriage without proving wrongdoing—simply citing "irreconcilable differences"—fault-based divorces require one spouse to establish that the other committed a specific wrong, such as adultery or cruel treatment.

Choosing to file for divorce on fault-based grounds may affect issues such as asset division, spousal support, and child custody, as courts may consider the nature of the wrongdoing in their decisions. However, fault-based divorces can also complicate the process, potentially leading to more contentious proceedings.

Do You Need a Divorce Lawyer? What Are Your Options?

Deciding whether to file for divorce on fault-based grounds, particularly in such a challenging time, can be overwhelming. Consulting with a lawyer who can guide you through this process is often advisable to ensure that your rights and interests are protected.

However, hiring a lawyer is not your only option for obtaining legal guidance in your situation. Your Law Coach is an online legal tool and resource for those with legal needs in the State of Arkansas.

Resources

• Arkansas Code Title 9 - Family Law, Chapter 12 - Divorce
• Arkansas Code Title 9 - Family Law, Chapter 11 - Annulment