Getting a Divorce When Your Spouse Is in Jail

As long as your spouse is cooperative and is able to receive, sign and return paperwork to you, the divorce process itself is essentially the same with an incarcerated spouse. The primary complication is transmitting mail. Correctional facilities are trending towards more restrictive policies when it comes to sending mail to inmates. Envelopes or packages sent by lawyers and courts labeled as “legal mail” generally get greater protection because of attorney-client privilege, but in many jurisdictions, pro se filers (those filing for divorce without a lawyer) are not permitted to label mail as “legal mail” when sending court documents to an incarcerated person. If you're not an attorney, most correctional facilities will not treat your mail as legal mail, even if it contains court documents. Additionally, sending mail improperly labeled as “legal mail” can sometimes lead to delays, returned mail, or even disciplinary consequences for the inmate.

When sending mail to an inmate, envelopes should be addressed as follows:

1. Offender’s full name, DOC#
2. Full facility name
3. Street address or P.O. Box
4. City, State ZIP Code

The envelope or package must include a full return address including sender's full name. Include a brief cover letter in a business style format that identifies the sender as the spouse of the inmate who is representing themselves in a divorce without an attorney. The letter should list the name of each document enclosed including the number of copies of each. Finally, the letter should indicate the name of any documents requiring the inmate’s signature to facilitate the divorce process. Do not include any other information or documents, and maintain a professional tone. This letter is only meant to convey to the facility staff who process mail that this is a legitimate legal filing and should be treated as such.

Depending on the facility's policy, it might help to include an envelope of adequate size with sufficient postage if there are documents you need for your spouse to sign and return to you. However, check with facility first because they may prohibit this.

It will be necessary for your spouse to sign at least one document—often more depending on the state—and then either return it to you for filing or send directly to the Court Clerk’s office. Note that it is generally easier for the inmate to return the paperwork to their spouse for filing. Not all states require a notarized signature on divorce paperwork. Learn more about your spouse's role in the divorce, including a state-by-state list of the documents that spouse signs in an uncontested divorce by agreement. Many correctional facilities have a notary on site, but if not, it may be possible to arrange for a mobile notary to visit the facility for an additional fee. While online notarization is authorized in all 50 states, the current process has authentication requirements that would be difficult to comply with for an incarcerated person. If your documents require your spouse’s notarized signature, contact the correctional facility where your spouse is housed to confirm whether notary services are available and advise you on any rules or procedures for sending and receiving legal paperwork.

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