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Filing for Divorce When Your Spouse Is in Prison

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Making the decision to divorce your spouse can sometimes be complicated when your spouse is not actually available to discuss the matter. When your spouse is in prison and your access to them is limited, can you still file for divorce? 

The Divorce Papers

The fact that your spouse is serving time in prison does not prevent you from getting a divorce. You are not required to personally serve divorce papers to your spouse while they're incarcerated. They still need to receive a copy of the documents in order for your divorce to proceed, but the prison or detention centre in which they're being held will act as a delivery service.

The Intended Recipient

In order for the divorce papers to be served to your spouse, you will need to prepare all the necessary documents and a cover letter detailing the purpose of the documents and their intended recipient within the prison system. In order to identify the recipient, you will need to know the facility in which your spouse is being incarcerated, along with their Master Index Number (MIN). The MIN is a unique identification number issued to each person at the commencement of their prison sentence. If you do not know the facility or MIN, contact the Department of Corrective Services in your state or territory.

A Substitute

The prison will deliver the divorce papers to your spouse, and this is classified as a substituted service. This means that while you have not personally delivered the documents, a substitution of this personal delivery has occurred so it's confirmed that your spouse has received the divorce papers.

A No-Fault Divorce

Your spouse can then take whatever steps they deem to be necessary or that are possible while they're incarcerated. They might wish to query or dispute the divorce, but it's not feasible for them to halt the process, as Australia offers a no-fault divorce, meaning that the precise reasons for the end of the marriage don't have to be taken into account. Essentially, divorce cannot be prevented provided you meet the necessary prerequisites (such as being separated for twelve months prior to filing).

The Courts

Ideally, your spouse will simply sign the papers and return them to you, but even if this was not to happen, it will not prevent you from proceeding. The substituted delivery service has ensured that the papers have been served, and divorce does not require mutual consent to be enacted. Should the matter go before the courts, your spouse will sometimes be given the option of appearing via a video link, if needed, but as mentioned, it's not as though they have the capacity to stop the divorce. 

It might seem like divorcing your spouse becomes more complicated while they're in prison, but it can be quite straightforward if you follow the correct process. If you need to serve divorce papers, contact an attorney to learn more.