Can I Get a Pennsylvania Divorce If I or My Spouse Is Incarcerated?
Whether or not you or your spouse is incarcerated plays no role in whether you can get a simple, uncontested, no-fault Pennsylvania divorce. As long as one (or both) of the two parties is a resident of Pennsylvania, you may file a divorce here.
Whether or not anyone can get a divorce in Pennsylvania depends on many things, but, except in a somewhat unusual circumstance, one or both parties being in jail or in prison is not one of them. For a simple, uncontested no-fault divorce, if one or both parties are incarcerated, the place where he, she or they are incarcerated is just his, her or their address. And, as I have written elsewhere, at least one of the the two parties must be a Pennsylvania resident. Where one’s home is before being incarcerated does not count nor does where one plans on living after release. For example, if a party to a divorce was born and lived in Ohio for the first 35 years of life but ends up in prison in Pennsylvania for the next 5 years, six months into the sentence, that party may file a divorce here. Similarly, if a party is in prison in Ohio and has been for a year, but spent the previous 40 years in Pennsylvania, that party is no longer a Pennsylvania resident.
What about that exception I mentioned? Well that has nothing to do with where the party is incarcerated. That is explained above. The exception has to do with parties who think they deserve a divorce because their spouses have been imprisoned. In no-fault divorce law, how badly a party has behaved – even if convicted of murder, for example – has nothing to do with NO-FAULT. Those words, “NO” and “FAULT” mean just what one would suppose they would – that such a divorce is no one’s fault. Where the confusion arises is that under Pennsylvania’s FAULT divorce law where the party filing the divorce claims the other party committed a serious fault under our law (such as physical abuse or adultery among others), it is true that a fault divorce may be filed against a spouse who has been convicted of a crime for which that spouse could have been (or was, course) sentenced for more than two years incarceration. So, for example, a woman’s husband robs a bank using firearms and is arrested, tried and convicted and the sentence COULD have been more than two years, that is grounds for a fault divorce (even if the spouse is released after eight months for good behavior), but that conviction means nothing in a NO-fault divorce.
Fault, as opposed to no-fault, divorces, require a hearing where the filing party will testify about the other party’s unacceptable behavior. Scheduling and having the hearing require heavy court costs and having an experienced lawyer attend the hearing with you to present your case to the court is more expensive yet. No-fault divorces require no testimony in court or anywhere. The court’s time is not taken up and your lawyer does not have to leave the office. Accordingly, the expense is far less as is the stress level since you will not be required to explain to anyone, not even your lawyer, why you want a divorce.
One more thing to consider in attempting to get the cooperation of your incarcerated spouse: Remember that incarcerated spouses have quite a bit of time on their hands in many instances. Some of them enjoy exerting whatever amount of control they can over their spouses, even if the incarcerated party actually wants the divorce too. Accordingly, pleading with your incarcerated spouse for a signature hands over control over your life. Your spouse may have no real interest in staying married to you, but may derive a sort of mean pleasure out of delaying or denying you that signature. The best attitude to convey, therefore, is that if your spouse signs, fine, but, if not, that’s fine, too. You’re apart and that is what you really want. The divorce decree will just tie off the final loose end in both of your lives.
In the past, as an additional service to a number of clients over the years, I have written incarcerated defendants long letters challenging them to do the right thing. In every instance, I must have pressed the right button because every one of them signed and did so very soon after my letter.