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How to Divorce Your Spouse if They Are Incarcerated
In Virginia, if your spouse is convicted of a felony and is sentenced to a period of incarceration of more than 12 months, this is grounds for divorce. Even if your spouse is incarcerated for a lesser period of time, if you meet the other grounds for divorce you can still file for divorce. In either case, the procedure is a little different.
Since under Virginia law, the inmate is a person under a "disability" they are entitled to a Guardian ad litem ("GAL"). The Court will appoint a Guardian ad litem but you will be responsible for paying for their services. The Guardian ad litem is a private attorney who will make sure that the inmates rights are not violated during the divorce. In most cases, your divorce attorney will work with another divorce attorney who will accept these type of cases. In my instance, there are a few attorneys that I work with where I will become a Guardian ad litem for their clients and they will become a Guardian ad litem for mine. It seems to work well.
The Guardian ad litem will contact the inmate and then file an answer on their behalf. The case then generally proceeds as if the opposing spouse was not incarcerated.
The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child," family abuse, and "other factors as the court deems necessary and proper to the determination."
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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