As a family law expert in northern New Jersey, I have seen firsthand the complexities and challenges that come with divorce. And when one spouse is behind bars, the process becomes even more difficult. In this article, I will share my knowledge and experience on the divorce laws in northern New Jersey and answer the question: can you get a divorce if your spouse is incarcerated?
The Basics of Divorce Laws in Northern New Jersey
Before we delve into the specifics of divorces involving an incarcerated spouse, it's important to understand the basics of divorce laws in northern New Jersey. In this region, divorces are governed by state laws, specifically the New Jersey Statutes Title 2A:34-1 et seq.These laws outline the grounds for divorce, property division, child custody, and other important aspects of the divorce process. In order to file for divorce in northern New Jersey, at least one spouse must have been a resident of the state for at least one year prior to filing. Additionally, there are several grounds for divorce in New Jersey, including irreconcilable differences, adultery, extreme cruelty, desertion, and imprisonment. The last ground, imprisonment, is what we will focus on in this article.
Imprisonment as Grounds for Divorce
In New Jersey, imprisonment can be used as grounds for divorce if one spouse has been sentenced to at least 18 months in prison. This means that if your spouse has been incarcerated for less than 18 months, you cannot file for divorce on the grounds of imprisonment.However, if your spouse has been sentenced to 18 months or more, you can use this as a reason for divorce. It's important to note that the imprisonment must be ongoing at the time of filing for divorce. If your spouse has already served their sentence and has been released, you cannot use imprisonment as grounds for divorce. Additionally, if your spouse is incarcerated in another state or country, you can still file for divorce in New Jersey as long as you meet the residency requirements.
The Process of Divorcing an Incarcerated Spouse
Now that we understand the grounds for divorce involving an incarcerated spouse, let's discuss the process of actually getting a divorce. The first step is to file a complaint for divorce with the Superior Court in the county where you or your spouse resides.In this complaint, you will need to state the grounds for divorce, including imprisonment. Once the complaint is filed, it must be served to your spouse. This can be done through certified mail or by hiring a process server. If your spouse is incarcerated in a New Jersey state prison, you can also serve them through the prison's legal mail system. However, if your spouse is incarcerated in a federal prison or out of state, you may need to seek assistance from their attorney or the prison's legal department. After being served with the complaint, your spouse will have 35 days to respond.
If they do not respond within this time frame, you can request a default judgment from the court. This means that the court will grant your divorce without your spouse's involvement.
Child Custody and Support
In divorces involving an incarcerated spouse, child custody and support can be complex issues. In New Jersey, child custody is determined based on the best interests of the child. This means that the court will consider factors such as the child's relationship with each parent, their living situation, and their physical and emotional well-being. If your spouse is incarcerated, it's likely that they will not be granted physical custody of the child.However, they may still have visitation rights. The court may also order your spouse to pay child support, even while they are in prison. This decision will be based on their income and ability to pay.
Property Division
In New Jersey, property division in a divorce is based on the principle of equitable distribution. This means that all marital assets and debts will be divided fairly, but not necessarily equally.In cases where one spouse is incarcerated, the court may take into consideration the fact that they are unable to contribute financially to the marriage. Additionally, if your spouse has been incarcerated for a significant amount of time, the court may consider this when dividing assets. For example, if your spouse has been in prison for 10 years and you have been solely responsible for paying the mortgage on your marital home, the court may award you a larger share of the home's value.
Final Thoughts
Divorcing an incarcerated spouse can be a challenging and emotional process. It's important to have a knowledgeable and experienced attorney by your side to guide you through the legal complexities. As an expert in family law in northern New Jersey, I have helped many clients navigate divorces involving an incarcerated spouse.If you are considering divorce in this situation, I highly recommend seeking legal counsel to ensure your rights are protected.
