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The Divorce Encyclopedia

Term Definition Incarceration - confinement in a prison, usually for a long time.
Application in Divorce In general, incarceration is not a bar to a spouse being granted a divorce. However, an incarcerated spouse is not entitled to attend divorce proceedings, nor is her or she entitled to be represented by counsel.

When one spouse is incarcerated, spousal support may move in three different ways. First, when the supporting spouse is jailed, that spouse may argue that incarceration is sufficient reason to deny support. Second, when the dependent spouse is incarcerated, the supporting spouse may argue there is no need for support. Finally, when one spouse is imprisoned after the divorce, he or she may argue that imprisonment is grounds for modification of support.

In general, courts have rejected incarceration as a defense against spousal support.

When the issue is modification of child support, some court have refused to reduce or terminate support; others have reduced or even suspected such payments.

In general, many courts do not penalize a party for actions that led to his or her incarceration. This is in line with most states’ statutes where fault is not a consideration unless it has an economic impact on the marital estate. The one exception to this is where the incarcerated spouse has murdered or attempted to murder his or her partner. In this case, courts will make very one-sided judgments in favor of the victim spouse.

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