As discussed in this post , one of the four fault grounds for divorce in Virginia is felony conviction with a sentence of at least one year of incarceration.
This is one of the most self-explanatory grounds for divorce—and one of the rarest. If you are in the unusual position of being married to someone who was convicted of a felony after your marriage, read on.
In Virginia, if a married person has been convicted of a felony and sentenced to confinement for more than one year, a divorce may be granted on that grounds. There are a few important details to be aware of in this section of the law of divorce. First, to proceed for divorce on this ground, the conviction and sentencing must have occurred after the date of your marriage. Further, you must not have cohabitated (lived together) after the conviction or sentencing.
Divorcing someone who is in jail has a few complexities to it that your divorce lawyer must pay attention to. In Virginia, a person who is incarcerated is considered to be under a “disability” if they have been sentenced to confinement for more than one year. Weird, I know, but stay with me. Because of this “disability,” the court will appoint a lawyer called a Guardian ad Litem (GAL) to protect your spouse’s best interests. Generally, the party who files for divorce asks for the court to appoint the GAL, but it can also be done in a separate motion. In some cases, this makes the divorce more expensive, because you could be ordered to pay for the GAL or at least to split the cost.
Another challenge to divorcing someone who is a guest of the state is service of process. You may know from TV shows that legal documents must generally be “served,” or given in person, to the other party. This is true in divorce as well. To serve an incarcerated person, you must serve the papers on the appointed GAL, as well as the warden or other official in charge of the jail where your spouse is being held. The jail will then be responsible for delivering the documents to your spouse. Once a GAL has been appointed and you’ve made proper service of process, the case then usually proceeds just as it would if you were divorcing someone who was not incarcerated.
Seek Wise Counsel
The main lessons of this story are, if you are thinking of divorcing someone who is in jail, be sure to hire someone who is an experienced divorce lawyer, and be sure that you tell them that the person you are divorcing is incarcerated.