incarcerated spouse

Can I Divorce from My Incarcerated Spouse in Texas?

zaccopp Divorce

In Texas, divorcing from an incarcerated spouse follows much the same process as a conventional divorce. To file for a divorce when one of the spouses is incarcerated, at least one of the spouses must live in Texas for at least six months. Once this requirement is met, you need to choose a grounds for your divorce. This is used to justify the dissolution of marriage. There are two main categories of grounds for divorce in Texas, no-fault and fault.

Grounds for Divorce from an Incarcerated Spouse


No-fault divorce designates a marriage as one where a conflict of personalities renders its longevity impossible. In other words, both spouses have irreconcilable differences and neither is interested in staying together. This type of divorce is generally the quickest and cheapest, given that both parties agree to end the marriage.

Texas Family Law Code recognizes the no-fault ground of insupportability for separating from an incarcerated partner. The law does not require the differences between partners or reasons for the divorce to be explained.


Not all states allow for fault-based grounds for divorce, which name a specific and provable reason for your divorce. Acceptable grounds for fault-based divorce in Texas include cruelty, adultery, abandonment, confinement to a mental hospital, and felony charges. To file to fault-based divorce is to tell the court that your spouse’s actions explicitly led to the culmination of your marriage.

In Texas, if your incarcerated spouse was convicted of a felony, you can use it as grounds for divorce. He/she cannot have been pardoned for this felony and must have been behind bars for at least one year. Even if your incarcerated spouse was not convicted of a felony, you can use time spent living apart as grounds for divorce. The minimum for time apart is three years, though your spouse need not be in prison for all three of those years.

Filing Your Petition for Dissolution of Marriage

Once you’ve chosen grounds for your divorce, your spouse must receive notice of the divorce and sign a waiver of service stating so. If your spouse does not sign, a professional process server will deliver a copy of your Petition for Dissolution of Marriage to him/her. To contest the divorce, your incarcerated spouse must execute power of attorney, allowing a lawyer to speak for him/her in all hearings.

Divorcing an incarcerated spouse in Texas isn’t much different from divorcing a spouse who’s not in prison. You file a Petition for Dissolution of Marriage and have it served to your spouse. The main difference is that your incarcerated spouse must execute power of attorney for court appearances since he will not likely be granted the right to attend hearings.

Texas Two Step Divorce specializes in Texas divorce forms. Find out more about how our experts who are knowledgeable in the requirements and intricacies of divorces in Texas can assist you in filling out your divorce form.