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Saturday, January 4, 2014

Filing for a New York Divorce From Spouse in Prison

Few life events can wreck a marriage faster than a long prison stint. 

One party struggles to cope with life behind bars, the other struggles to handle the children, finances and other affairs on their own.. 

Divorcing an imprisoned spouse in New York is made easier under New York Domestic Relations Laws, as imprisonment of greater than three years constitutes grounds upon which to file for divorce. This statute allows that the free party can claim the imprisoned party "at-fault" for the divorce if he or she has been imprisoned for a period of three years or longer. 

This provision is only applicable if the prisoner has been locked up for at least three years. If he or she has only been sentenced to three years, the free party cannot file for divorce on these grounds until that three-year mark is reached. You can also file for divorce on these grounds for up to five years after the imprisoned party is released. 

However, that does not mean there aren't other options. New York became a no-fault state in 2010, meaning neither party has to assign blame to the other in order to secure a legal separation or divorce. A no-fault divorce simply says there has been an irretrievable breakdown of the marriage.

While it's understandable that the freed party may want to simply initiate the filing and get it over with, there can be some benefits to waiting out the three years. An at-fault divorce filing can in some instances entitle the spouse who is not at fault to receive full child custody, spousal support and/or alimony or a larger share of the marital assets. 

This is why even if your spouse hasn't been imprisoned for the full three-year term yet, you may consider filing an at-fault divorce on other grounds, such as abandonment, adultery or cruel and inhuman treatment. 

While many incarcerated spouses allow their husband or wife to file the action uncontested, recognizing the unfair position in which they have placed the other person, others fight the divorce action vigorously. Sometimes, the marriage is the only thing they have left, an they aren't willing to let it go without a battle. 

Such was the case in Jackson v. Sey, recently reviewed by the Alaska Supreme Court. 

In this case, the husband was incarcerated shortly after the two married in 2003. The wife filed for divorce five years later, while her husband was still in prison. In his answer to the divorce filing, the husband alleged that his wife had concealed property that should have been part of the marital estate. He also challenged the jurisdiction of the court, as he was incarcerated at a federal prison in California. 

When the husband failed to appear telephonically for a scheduled hearing in the case, the court granted the wife the divorce by default. 

The husband later appealed this action, but the court found that his claim to marital property was moot because the separation had occurred just weeks after the two were married. He continued to fight this issue, and was eventually granted access to his wife's bank account records, upon which he founded his claim for approximately $15,000 in marital assets. The request was denied and the case closed, specifically on the grounds that he had waited too long to file the appeal.

He filed for a reconsideration on the grounds that the divorce court only allowed him to conduct discovery after the divorce had been granted. This motion too was denied. 

However, he appealed to the higher court, requesting that the divorce decree itself be vacated because he was not given proper notice of the hearing at which he failed to attend telephonically. 

The state supreme court determined that while the husband's discovery efforts were misguided, the superior court authorized his course of action and failed to impose new deadlines for his supplementation, leaving him without a clear timetable for the motion's consideration. 

However, the high court found that the request to vacate the divorce decree wasn't first addressed with the lower court, as it should have been. So the court didn't rule on that aspect of the case, but did reverse the earlier dismissal of his motion for access to certain marital property and ordered the matter remanded for further consideration. 

This case illustrates how these matters drag on. It is possible that an experienced divorce attorney can help a client approach an imprisoned spouse on these issues in a way that minimizes the potential for this kind of protracted legal fight. 

If you are contemplating a divorce from an incarcerated spouse in New York City, call our offices at (718) 864-2011.

Additional Resources:

Jackson v. SeyDec. 23, 2013, Alaska Supreme Court

More Blog Entries:

Divorce of Female Military Members Higher Than for Males, Dec. 23, 2013, New York City Divorce Lawyer Blog


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