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Can I divorce my spouse if they are in prison?

Under certain circumstances, a New York resident may pursue a divorce against a spouse who is incarcerated at the time of the filing of the divorce proceedings. The remainder of this post will provide an overview of the requirements for filing for divorce based on this fault ground, but readers are asked to speak with their personal family law attorneys about the facts and circumstances of their particular legal cases.

First, a party may not use incarceration or imprisonment as grounds for divorce if the party married their incarcerated spouse while that person was in prison. The incarceration must have occurred after the marriage of the parties in order for it to be a valid reason for the divorce.

Second, the incarcerated party must have been in prison for at least three years before the filing party initiates the divorce action. Periods of incarceration that do not last three years do not qualify a spouse to file for divorce, nor do separate periods of incarceration that add up to three years. The three or more years of incarceration must be consecutive in order to qualify.

Finally, a spouse may file for divorce based on incarceration at any point after the three year minimum is reached and may file for divorce based on this rationale for up to five years after the incarcerated spouse is released. Once a party is released from prison and five years have passed, then their spouse may not use incarceration as grounds for divorce.

New York recognizes a variety of rationales on which parties may base their fault-based divorces. Attorneys who work in the family law field are excellent resources for those readers who wish to better understand the ramifications of choosing a fault ground for divorce over other possible avenues to end their marriages.

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