What You Need to Know About Divorcing Someone in Prison
In California, the laws concerning the basis for divorce are straightforward. Here’s how to divorce someone in prison.
California is a no-fault divorce state which means that the spouse seeking divorce does not have to prove the other spouse did anything wrong. All it takes is for one spouse to state that the couple cannot get along—legally, this is called irreconcilable differences. This also applies to a spouse in prison.
Eligibility Requirements for Divorce in California
To file for divorce in California, one of the individuals in the couple must have lived in California for at least 6 months and in the county where they are filing for at least 3 months. If these requirements are not met, one can file for legal separation. Once the residency requirement is met, one can file an amended petition for divorce in the county in which they live.
Summary Dissolution
As mentioned, California is a no-fault divorce state which allows for any couple to divorce without any particular reason. There is a separate option called summary dissolution, which is a quicker and easier way to get a divorce. In a summary dissolution, one will not have to speak with a judge and might not have to retain a lawyer.
The qualifications for a summary dissolution are as follows:
- Have been married for less than 5 years
- Have no children together born or adopted before or during the marriage (and not currently expecting a child)
- Do not own any part of land or buildings
- Do not rent any land or buildings
- Do not owe more than $6,000 for debts acquired since the date one got married
- Have less than $45,000 worth of property acquired during marriage
- Do not have separate property worth more than $45,000
- Agree that neither spouse will ever get spousal support
- Have signed an agreement that divides your property and debts
Related: Summary Dissolution of Marriage in California
How to Divorce Someone in Prison: Filing a Divorce Case
1. Fill out the following forms:
- The Petition—Marriage/Domestic Partnership (Form FL-100) gives the court basic information about the marriage and gives one the opportunity to ask the court what order they want the court to make. The spouse starting the case is the petitioner.
- Summons (Form FL-110) contains important information for the couple about the divorce process. It contains some orders limiting what couples can do with their property, money, and other assets and debts, among other things.
- If one has children under the age of 18 with their spouse, fill out the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120).
Make sure to make copies of the forms to give to the other spouse. The original forms are for the courts.
2. File the forms with the court clerk and pay the appropriate filing fees.
3. Serve the first set of court forms
California law requires that the receiving spouse be told that the divorce process has started. In order for one to do this, one must “serve” their spouse with copies of all their court papers.
Related: Here’s How to Serve Divorce Papers in California
4. Fill out and serve the proper financial disclosure forms
The financial disclosure forms must be submitted no later than 60 days after the filing of a divorce petition. These forms give each of the spouses written information about what each one owes, separately and together, in order to divide the property and debts equally.
- Declaration of Disclosure form (FL-140)
- Schedule of Assets and Debts form (FL-142)
- Income and Expense Declaration form (FL-150)
The disclosure documents must include all tax returns filed in the last 2 years.
Make a copy of the forms and serve them to the receiving spouse (must be done by someone other than the petitioner and who is at least 18 years of age).
5. File the Declaration Regarding Service of Declaration of Disclosure (Form FL-141), which tells the court the required disclosure documents were sent. Make two copies of this form and file both with the county clerk. The clerk will keep the original and rerun the copies back stamped “Filed.”
How to Serve Divorce Documents to a Spouse in Prison
1. Call the facility where the spouse is incarcerated and ask for the name and address where documents will be served.
2. Send the following to the server:
- two copies of all documents,
- Proof of Service form (POS-040),
- self-addressed stamped envelope, and
- cover letter asking that the spouse be personally served, and that the “Proof of Service” be completed and sent back to the petitioner before the hearing date. It is important that the petitioner informs the server of the date, department, and time of the hearing.
3. File the original “Proof of Service” with the court.
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If you or a loved one have any more questions about how to divorce someone in prison, contact us. Get your free consultation with one of our Divorce Attorneys in California today!