Getting a Divorce in Illinois When Your Spouse is in Jail  

 Posted on January 05, 2025 in Divorce

If your spouse ends up arrested and sentenced to prison for a criminal offense, you might be dealing with a lot of strong emotions at the same time. It is entirely understandable to feel heartbroken, betrayed, or even incensed, and sometimes, there is no other way to move forward but to get a divorce.

That being said, a divorce with a spouse behind bars can present unique challenges that you may not be comfortable handling alone. A DuPage County, IL family law attorney can help you finalize the dissolution of your marriage and give you closure during an especially traumatic time in your life. Attorney Michael J. Calabrese has previously served as a chair of the DuPage County Bar Association, and his experience allows him to navigate the most sensitive issues of family law.

Serving Papers

Like any other divorce, the process begins by serving your spouse with papers, providing him or her with formal notice of your intent to file for a dissolution of marriage. To make sure these papers reach your spouse behind bars, you will have to find your spouse’s inmate number via the state’s online posting from the Department of Corrections.

After submitting notice, you will hear back from the county sheriff that your notice has been delivered to your spouse. From this point onward, the dissolution of your marriage will take a different trajectory depending on whether or not your spouse agrees to an uncontested divorce.

Litigating a Divorce with an Incarcerated Spouse

Generally speaking, an uncontested divorce is vastly preferable when one spouse is behind bars. The process can be resolved much quicker if both spouses agree to the terms and avoid litigation. However, your spouse may still choose to contest the divorce from jail, not always coming from a place of good faith. In most cases, an incarcerated spouse will not be permitted to make court appearances in person, and will instead be represented by an attorney.

Though litigating a divorce is a costly endeavor, you will likely have the upper hand in negotiations for a settlement while your spouse is incarcerated. If your divorce goes to court, it is critical that you have a family law attorney at your side who will adamantly defend your best interests.

Special Considerations for Child Custody

It goes without saying that an incarcerated parent will not have primary custody of a child. However, your spouse may still have rights to visitation while he or she is serving a prison sentence. There are exceptions to this right – namely, if the court finds that allowing visitation in prison would be detrimental to your child’s well-being.

Meet With a Naperville, IL Family Law Attorney Today

The decision to divorce your incarcerated spouse is often a difficult choice to make. However, if you are in this situation, our DuPage County, IL divorce lawyer can inform you of your rights throughout the process and make sure your best interests are protected if you are ready to move forward. Call Calabrese Associates, P.C. at 630-393-3111 to schedule a consultation today.