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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.

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One of the parties must be a resident and domiciliary of Virginia for at least six months preceding the filing for divorce. If the courts finds that they do not have jurisdiction over the case, they may eventually dismiss it.
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