People make mistakes. We all know and learn this, often the hard way. The people of Texas know this well because our state has the highest prison population of any state in the country (and one of the highest incarceration rates of any territory in the world).
There are a number of reasons for the high number of people in prison in Texas and other states across the U.S. from false imprisonment to unrelenting socioeconomic deficiencies to high crime rates and beyond. For the purposes of this article, we are simply focusing on the impact that imprisonment has on your divorce in Texas regardless of whether or not the incarcerated spouse should actually be there.
Does Incarceration Make a Texas Divorce Easier or Harder?
This is one of the most common questions when one spouse is in prison during the divorce process. People often assume this somehow makes divorce “easier” because the divorcing spouse, more often the person who is not in prison, is assumed to have more power and leeway in the proceedings. This is not entirely true.
Practical matters such as serving a spouse in jail and having them attend divorce proceedings are often complicated by the regulations set forth by the detention facility. It’s important to contact the detention facility to understand if they will have an employee serve the divorce papers to the spouse and if the spouse will be able to attend hearings by phone or, less likely, in person.
People who are incarcerated are able to send mail which means they are able to have divorce papers served by certified mail or by hiring someone to serve their spouse on their behalf. This is no different than a spouse who is out of prison, but there may be more challenges working with an attorney and finding someone to serve the papers (your attorney should be able to help with this).
How Incarceration Impacts the Division of Assets
One of the biggest challenges in any divorce is deciding how to divide marital property. Texas is considered a “community property state” which means the assets acquired during your marriage are considered to be equally owned by both spouses and Texas uses a just and right division. A spouse going to prison does not change this assumption.
The just and right division division is able to be avoided through negotiation and agreement between the two parties, but this is a bigger challenge when a spouse is in prison. Your communication is limited. Opting for written correspondence and communicating through attorneys will slow the process but may be your best solution. The incarcerated spouse may need to understand that temporary accommodations for any of the assets awarded.
Impact on Child Custody, Child Support, and Alimony
If a spouse is in prison in connection with a violent crime or drug offense then this is considered when determining a Texas child custody order. The courts always act in the best interests of the child and will protect Texas children from violent or legally irresponsible parents. Outside of this, the offense may ultimately not be relevant.
If the court determines that the spouse that is incarcerated is still the best option to be the primary caregiver for your children, then the court will issue parameters to be in place until their sentence is complete. Don’t assume that your spouse going to prison automatically means you get custody – and don’t assume that you will lose custody just because you’re in prison.
Support and alimony generally only factor in financial implications more than other elements. Because of this, imprisonment may not have a meaningful impact on various forms of support – but it does make it more likely the incarcerated spouse will end up paying as they are less likely to receive custody.
At Kimbrough Legal, we share a compassion for those in prison and wish for all families to be reunited as opposed to being ripped apart by the justice system. We understand the strain these situations put on families and are here to support you if you are seeking a Texas divorce while one partner is in prison.
Divorce Wise™
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