Until Prison Do Us Part: Divorcing an Inmate

October 05, 2016

By Keffer Hirschauer LLP

Unfortunately, any number of reasons can cause a married couple to divorce: finances, infidelity, a change in personalities or affect. And, many times, the incarceration of a spouse becomes the precipitating reason for a divorce petition and irreconcilable differences. When a divorce petition is filed and one party is incarcerated, there are two additional concerns that should be addressed outside of the traditional divorce considerations (i.e., division of assets, custody, and support).

The first is notice. Notice is a requirement in nearly every legal proceeding, but the ability to prove notice (or service) with an inmate can be complicated. Traditional mailings are not always sufficient, certified mail cannot be signed for on behalf of the recipient, and use of a Civil Sheriff seems redundant. Traditionally, in a divorce matter involving an incarcerated individual, multiple forms of notice for any hearing or petition is the best course of action. This provides confidence that the other spouse has been properly noticed and given time to respond, and it allows the filing spouse to show a court that they undertook as many necessary steps as practicable to accomplish it.

Second, with a spouse incarcerated, the calculation of income can represent another challenge. In Lambert v. Lambert, 861 N.E. 2d 1176 (Ind. 2007), the Indiana Supreme Court determined that the proper income used to calculate support during a party’s incarceration is to be the actual income, and not any pre-incarceration income. This means an incarcerated individual is commonly to be treated as having no income, for purposes of child support, during the period of their incarceration. While it is still possible to create an imputed income upon the individual’s release from custody, based on their income prior to incarceration, but that is not always embraced by the courts and legal counsel should be used to assist in proving income from prior time periods.

Contact Keffer Hirschauer LLP today if you have questions or believe you are in need of caring, compassionate, and capable family law representation. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160.