Navigating a divorce when your spouse is incarcerated in New York presents unique legal considerations. This blog addresses the permissibility of dissolving a marriage under New York law while a spouse is serving a prison sentence. An experienced Garden City Divorce Lawyer at the Law Offices of Eyal Talassazan, P.C. is available to provide guidance and clarify your legal avenues during these trying times.
Can You File for Divorce If Your Spouse is Incarcerated in NY?
Yes, you can get a divorce in New York even if your spouse is currently behind bars. As long as you or your spouse has lived in New York for one continuous year before filing, you meet the state’s residency requirements for divorce.
New York allows imprisonment to be a ground for divorce. If your spouse has been locked up for three or more consecutive years after the marriage began, you can cite this ground. This ground applies if the spouse is currently serving their sentence or within five years of their release. However, this is not your only option. If their sentence is shorter or suspended due to probation, you can file under different grounds, such as irretrievable breakdown, adultery, abandonment, or extreme cruelty, if they apply to your unique circumstances. Engaging a qualified attorney is advisable, as they can help you determine which ground best fits your case and avoid unnecessary delays.
How Do I Serve Divorce Papers to an Incarcerated Spouse in NY?
When you file for divorce in New York, you are required to serve divorce papers on your spouse to notify them of the legal proceedings. This provides them with an opportunity to respond to the divorce petition. Proper service is essential for safeguarding the defendant’s rights, ensuring they have a chance to present their position on divorce-related issues like property division, alimony, and child custody. Even behind bars, an incarcerated spouse can contest the divorce.
Divorce papers must be properly delivered through the prison administration. Before you can move forward with the case, you will need documentation showing your spouse received the legal paperwork. Failure to obtain proof of service results in costly delays or the court dismissing your filing altogether.
What Happens if They Fail to Respond to the Divorce Papers in NY?
If your incarcerated spouse fails to respond to the divorce papers within 20-30 days (the allotted time depends on whether they were served in New York or outside of the state), the judge can grant a default divorce. This means the judge can decide the divorce terms solely on the information and requests of the filing spouse.
Once all required divorce documents are filed and the allotted timeframe has expired without a response from your incarcerated spouse, the judge can finalize the divorce. In these situations, your spouse’s consent or attendance is not necessary for the divorce to move forward. This can accelerate the dissolution of your marriage, as it eliminates the need for negotiations or your spouse’s participation in the divorce process.
For more information, please don’t hesitate to contact an attorney at the Law Offices of Eyal Talassazan. P.C.
