Divorce, Marriage, and Incarceration

A common question is whether a person can get married or divorced if one of the parties is incarcerated. The laws and procedures vary by state and prison facility, but generally speaking, marriage and divorce can be accommodated even if one of the spouses is in prison or jail.

Before pursuing marriage with a prison inmate, it is in your best interests to consult with a family law attorney in your state to discuss your options. Marrying a prisoner is complicated, and details will inevitably apply to your situation that will need to be worked out.

How Do We Get Married?

Each prison or jail has its own procedures, but these are the general steps to take to get married to a prisoner:

• Research the particular prison’s rules for marriage and wedding ceremonies. Every correctional facility has its own regulations, so check the rules for the specific facility where your loved one is incarcerated. Not all prisons allow inmates to marry; in some cases, particular inmates may not be allowed to marry for security reasons.
  • Some facilities require a written request for permission to marry. There will be rules regarding where the ceremony is performed if family members can be present, and whether flowers, photographs, or other traditional wedding details are allowed. Check the facility’s website or talk to the prison chaplain or warden. They can give you instructions and answer your questions.
• Complete all paperwork required by the prison. Many state and federal prisons require a packet of paperwork to be completed by both potential spouses before they will grant permission for the wedding. Some common paperwork requirements include proof that both potential spouses are of legal age to marry and a statement explaining why the wedding is being requested while one potential spouse is incarcerated.
  • Prison officials may interview your incarcerated partner before the marriage is approved. This is done to confirm that the marriage will not cause safety issues for the prison or interfere with their rehabilitation. In some cases, prison officials may request to interview you as well.
  • After permission to marry has been obtained, you will usually work with the prison facility’s Family Visiting Coordinator to arrange the actual ceremony, and you can set a date. Unlike in a traditional wedding setting, correctional facilities may have strict guidelines about when weddings can and cannot occur. Check the facility’s website or ask the warden if there are restrictions on when your ceremony can take place. For instance, you may only have a ceremony on certain days of each year or specific days of the month.
• Obtain a marriage license for you and your partner. Every state requires potential spouses to get a marriage license to marry. Normally, both parties must appear together at a county clerk’s office and request that they be granted a marriage license. Contact the facility’s warden or other appropriate official to determine the process for obtaining this license when one party is incarcerated.
• Find an officiant for your ceremony. In some facilities, only a prison chaplain can officiate weddings. However, you may request an exception on religious or personal grounds. Check the facility’s rules or ask the warden if you can choose your own officiant.
• Arrange for guests to be present at the ceremony. Not all correctional facilities allow guests to attend weddings. For the required witnesses to a wedding, the facility may require you to use prison officials or other inmates. Be aware that if the facility does allow guests, you may only be able to invite specific people, such as immediate family members, or only a specific number of guests. Guests entering the facility may need to pass background checks or request individual approval before the ceremony.
• Leave cell phones, cameras, and other contraband at home. “Contraband” is any item or belonging that’s prohibited in the facility. These can also include outside food (including a wedding cake).
• Follow the facility’s rules and obey all instructions from the staff. Prison officials will likely stand by during your ceremony to ensure no rules are broken, but it’s best to talk to them before the ceremony to know what is and is not allowed. For instance, there might be restrictions on physical contact, such as whether and how you can kiss once the officiant pronounces you married.
  • After the ceremony, you may be permitted to spend time together as a couple (under supervision), but this isn’t guaranteed.

What are Conjugal Visits?

Conjugal visits are designated periods that allow married couples to spend time together while one spouse is incarcerated. States that still allow conjugal visits include California, New Mexico, New York, and Washington. Federal prisons and facilities in other states do not allow conjugal visits at all.

Even in the states that allow for conjugal visits, the availability of such visitation times may be subject to change. Conjugal visits are seen as a privilege, not a right, and can sometimes be taken away from individual inmates even if it is still allowed in the state. It may also depend on the reason behind the prisoner’s incarceration.

Can a Prisoner Get Divorced?

It is generally possible to divorce someone who is in prison serving a sentence. The best approach in any individual case will again depend on the marriage and divorce laws of the state in which you live. Additionally, speaking with a family lawyer in your state or region would be beneficial because of jurisdictional issues concerning where you can file for divorce.

While the trend is for people to file for no-fault divorce (where there is no need to blame one or both spouses for the failure of the marriage), there are cases where it is preferable to file for a fault-based divorce. Incarceration is a legitimate ground for divorce in Maryland, New York, Pennsylvania, Texas, and New Jersey. The length of incarceration necessary for divorce on the ground of incarceration varies from state to state but is commonly around 1-3 years.

What About Support and Custody Issues?

An incarcerated spouse may be ordered to pay child or spousal support in divorce. If there were an existing child custody or visitation arrangement before incarceration, this would need to be updated if one of the spouses enters a prison facility to serve a sentence. The arrangement must reflect the incarcerated spouse’s new living arrangement and inability to fulfill any custody and visitation duties.

In addition, if a spouse or former spouse owed child support payments before being sent to prison, they can sometimes petition the court to have the payment amounts modified to reflect their income during incarceration.

What if an Incarcerated Spouse Refuses to Sign the Papers?

It is not necessary for a spouse who has been properly served to sign any divorce papers for the proceedings to move forward. If they refuse, then it is generally possible to obtain a divorce by default.

Do I Need a Lawyer for Help Regarding Marriage or Divorce?

If you are interested in marrying or divorcing an incarcerated person, you should consider speaking with a divorce lawyer in your area.

They can help you to find out about your rights and options. Working with an experienced lawyer will help you understand the choices open to you according to state laws. They can help protect you, your family, and your interests.