A criminal conviction and incarceration of a spouse can be disastrous for a marriage, and the entire family. A spouse’s conviction of a felony and their confinement in prison for more than one year is one of several “fault” grounds for divorce in Virginia. In this situation the procedures vary somewhat from other fault grounds such as adultery, cruelty, abandonment. If you want to file for divorce based on your husband or wife’s conviction of a felony and incarceration, you should first consider the basic requirements for a divorce in Virginia:
You or your spouse must be a resident and be domiciled in Virginia for at least six months before you can even file for a divorce in the Commonwealth. “Domicile” is defined to be a residence at a particular place, accompanied with an intention to remain there for an indefinite period of time. In other words, domicile consists of the fact of residence and the intent to remain or return to your residence. When this requirement is met by at least one party, the rest of the divorce process will depend on the grounds on which you seek the divorce.
Under normal circumstances Virginia requires a separation period of up to one year before granting a divorce. Incarceration, however, is an exception to the separation period. Under Virginia law, you can seek an immediate divorce if you can establish (1) your spouse has been convicted of a felony; (2) They were sentenced to confinement for more than one year, and; (3) You have not cohabited with them after finding out about the conviction.
When the ground for the divorce is a felony conviction it must have occurred after the parties were married. Also, the felon must actually be incarcerated for a period of time. If they were convicted, but then put on probation, you can’t use incarceration as ground for divorce.
Divorces based on felony convictions, and incarceration always require a Guardian ad Litem, (an attorney to represent the party in jail) to be appointed by the court before a divorce can be granted. This is because the court views an incarcerated person as a person under a disability. This lawyer represents the prisoner’s interest in the divorce. A court will not grant a divorce until it appoints an attorney for the incarcerated spouse. You will be required to pay for this lawyer to represent your spouse, unless the fess are waived because the crime for which your spouse was convicted was an assault, injury or sexual abuse of you, or a child.
If you’re seeking a divorce from a spouse who is incarcerated, call Virginia Family Law Center, P.C. to day to speak with one of our experienced family law attorneys. We’re here to help!