In fact, incarceration is one of several fault grounds for divorce in Virginia. Virginia Code Section 20-91(A)(3) states that if one of the parties to a marriage has been convicted of a felony, and sentenced to confinement for more than one year, a divorce may be granted. However, you should be aware of some caveats to this ground for divorce. In order to proceed for divorce on this ground, your spouse’s conviction and sentencing must have occurred after the date of marriage and you must not have cohabitated after the conviction or period of confinement. If the conviction and sentencing occurred before the marriage, did not result in confinement for more than one year, or you and your spouse lived together after the conviction and confinement, you will not be able to file for divorce on this ground. However, even in that case, all is not lost. If you do not meet the statutory requirements for a divorce based on your spouse’s conviction of a felony, you may still be able to obtain a divorce on one of the other available divorce grounds.
Regardless of the ground for divorce applicable in your case, the procedure of obtaining a divorce will be slightly different than if your spouse were not incarcerated. Under Virginia law, your spouse is considered a person under a “disability” if they have been sentenced to confinement for more than one year. Due to this “disability,” the court will require the appointment of a Guardian ad Litem (GAL). The GAL will be a licensed attorney who is tasked with protecting the interests and rights of your spouse. The appointment of a GAL can be requested in the divorce complaint or through a separate motion for appointment of a GAL. The court will appoint a GAL if your spouse is under a “disability,” and in most cases you will be responsible for paying the GAL’s fees.
Once the complaint is filed with the court, you must clear the initial hurdle of “service of process”—which can be challenging if your spouse is incarcerated. The incarcerated spouse must either waive service or the complaint must be formally served on the spouse. To serve an incarcerated spouse, under Virginia Code Section 8.01-297 you must serve the papers to the appointed GAL, as well as the officer in charge of the jail where your spouse is being held. The officer of the jail will then be responsible for delivering the documents to your spouse. After service of process is complete, the case will usually proceed as if your spouse was not incarcerated.
If you need to divorce an incarcerated spouse in Northern Virginia, please contact us to schedule a consultation. The divorce attorneys at Livesay & Myers, P.C. have years of experience in representing individuals in divorce suits involving incarcerated spouses in Fairfax, Manassas, Alexandria, Arlington, Prince William County, Stafford, Spotsylvania, Fredericksburg and surrounding areas.