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When one spouse is incarcerated, life doesn’t pause—and neither do major life decisions like divorce. Whether you’re the one in prison or the one outside, ending a marriage while a spouse is incarcerated is absolutely possible in Massachusetts. It may feel overwhelming, but you’re not alone. We’ll help you understand the process and protect your rights every step of the way.
Can You File for Divorce If One Spouse Is Incarcerated in Massachusetts?
Incarceration does not prevent someone from filing or being served with divorce papers. In Massachusetts, either spouse can file, regardless of the reason for the imprisonment or who is behind bars.
Massachusetts also allows for no-fault divorce, meaning you don’t have to prove that your spouse did anything wrong—you just need to show that the marriage has broken down and can’t be fixed. If you do choose to cite a fault-based ground (such as cruel and abusive treatment or a prison sentence of five or more years), that’s an option too.
Once the divorce is filed, the court will make sure the incarcerated spouse is properly served with the legal documents. This is typically done through the correctional facility where they’re held, and the court will provide guidance on how to do it correctly.
What the Divorce Process Looks Like in These Situations
The divorce process itself is similar to any other case, but it comes with a few extra steps when one spouse is in prison. Here’s what to expect:
- Filing the complaint: The spouse seeking divorce files with the Probate and Family Court.
- Serving the papers: The incarcerated spouse receives the documents through the prison system.
- Response: The incarcerated spouse has the right to respond, just like anyone else.
- Participation: They may be allowed to attend court dates through video conference or, occasionally, in person.
- Financial disclosures: Both sides still have to share financial information, even if one party has little to no income at the time.
- Settlement or trial: If both sides agree, the case can settle. If not, it will move forward to a hearing or trial.
We help clients through each of these steps, including handling communication with prison officials, managing delays, and ensuring that court orders are properly followed.
Custody and Support Considerations When a Parent Is Incarcerated
When children are involved, the court always puts their best interests first. Incarceration doesn’t automatically end parental rights, but it does impact custody decisions. A parent who is serving time may still have a legal right to be involved in their child’s life, depending on the situation.
That said, the court will look at factors like:
- The nature of the offense
- The length of the sentence
- The parent’s ability to provide a safe and stable environment
Parenting time may be limited or supervised, and in some cases, it may be suspended altogether. As for child support, the court can still issue an order. However, if a parent can’t pay due to incarceration, the court may reduce the amount based on current income and financial resources.
Property Division and Spousal Support Challenges
Even if one spouse is incarcerated, the court still needs to divide marital property and debts fairly. This includes homes, bank accounts, retirement savings, and anything else acquired during the marriage. The court aims to be fair, not necessarily equal.
Spousal support, or alimony, may also come into play. The court considers each spouse’s financial situation, and if the incarcerated spouse has no income or assets, that could affect whether support is ordered or how much it might be.
When one spouse is in prison, there can be delays in getting signatures, exchanging documents, or scheduling hearings. We work around those challenges and keep your case moving forward.
How We Can Help You Move Forward
Divorce is never easy, and incarceration makes it even harder. But you don’t have to figure it all out on your own. At LaFountain & Wollman, P.C., we help individuals on both sides of these situations—those who are on the outside and those who are incarcerated.
We’ll:
- Prepare and file all necessary paperwork
- Communicate with the correctional facility as needed
- Represent your interests in court
- Help you understand your rights and next steps
You deserve clear answers and a reliable legal team that handles the process with professionalism and care.
You Don’t Have to Go Through It Alone
If you’re thinking about divorce and one of you is currently incarcerated, we’re here to help you move forward. At LaFountain & Wollman, P.C., we’ll make sure you’re treated fairly and keep the process as smooth as possible under the circumstances. Contact us today to schedule a confidential consultation and take the next step.