It can be hard going through a family law matter (divorce, legal separation, child custody, child support, etc.) when both parties are aware of where the other party is located and cooperating with the process. However, there are certain factors that might make a family law matter more difficult than it already might be. One of those factors is if the other party is in prison or jail, either when the matter starts, or they end up there at some point during the family law matter process.

How do I serve the other party in prison or jail?

If the other party is in prison or jail when you would like to start a family law matter, you still need to have them personally served after you file the initial pleadings. Do not just mail the initial pleadings to the prison or jail and think that is sufficient service – it is not. You will need to contact the facility and get instructions from them on the process to follow to complete personal service. Make sure you have the other party’s inmate number. The process will likely involve mailing or emailing the pleadings to a specific department and waiting for them to send you a filled-out and signed Proof of Personal Service or similar document outlining that the other party was personally served, at what time, and with which documents. You will then need to file this document in your family law matter so there is a record of service.

If the other party is in prison or jail and you want to file a motion or other pleading that doesn’t require personal service, then you should again contact the facility and get instructions from them on the process to follow to complete service. Make sure you have the other party’s inmate number. The process will likely involve mailing the pleadings to the other party but including specific language on the envelope or pleadings (likely something along the lines of “legal materials”). As a reminder, you need to allow at least 3 extra days in addition to the required filing and service deadlines when mailing pleadings to the other party. I would recommend budgeting at least a week to make sure there is no question of the other party not having the pleadings or enough time to respond. At the time you mail the pleadings to the other party, you will then need to fill out and file a Proof of Mailing or Hand Delivery in your family law matter so there is a record of service.

Does the other party being in prison or jail impact the way my family law matter is handled by the court?

In general, the other party being in prison or jail does not impact the way your family law matter is handled by the court as far as the process goes. The timelines do not change (unless the other party is located out of state), and the party in prison or jail is held to the same standard as other parties as far as court procedures are concerned. The one big difference is if the party in prison or jail wants to participate in court appearances, then they will need to coordinate with the judicial officer’s assistant, and your case may be assigned a particular time on the day of the court appearance to accommodate their schedule. The court is also going to want to see very clear proof in your family law matter that the party in prison or jail was properly served.

If your family law matter deals with child custody and the other party is in prison or jail, the court will still require a Parenting Plan even if it is fairly obvious that the child(ren) will not be spending time with the other party while they are in prison or jail. You can include that there will be no parenting time for the other party at all, and in essence, require the other party to file something with the court after they are released, or include that there will be no parenting time for the other party until they get out and then include a parenting schedule for when they get out. If it is looking like the other party will be in prison or jail for a substantial period of time, or the reason the other party is in prison or jail is because of crimes involving the child, I might recommend including no parenting time at all, or reunification counseling after the other party is out of prison or jail.

If your family law matter deals with child support and the other party is in prison or jail, the court will still require a Child Support Order even if it is fairly obvious that the other party doesn’t have a job and might not be capable of providing child support. There are special statutes and sections in the Child Support Order that account for this situation, and ultimately the other party will be entitled to a temporary reduction in child support to $10.00 per month if they are in prison or jail for at least six months and have no other assets or income. There is a process to increase the child support amount after the other party is released, but that is a subject for another blog post.

Is there anything in particular I should pay special attention to?

If your family law matter deals with the division of assets or debts, or spousal support, and the other party is in prison or jail before the family law matter starts, the date of separation is going to be very important, potentially more important than in other family law matters where neither party is in prison or jail. The court will be using that date as the day the community ended, so keep good records of what existed at the time the parties got together, the time the parties married (if applicable), and the time the parties separated. Use this information to be very clear in the initial pleadings on what you are proposing for a division of assets or debts, or spousal support. If the other party doesn’t respond, then the court is going to want to see a clear process for the proposal, in addition to a very clear proposal, so there is no confusion in the final orders.

Final Thoughts

Going through a family law matter while the other party is in prison or jail can be difficult to navigate on your own, especially when there are children involved. If you have questions about your family law matter and the other party is in prison or jail, don’t hesitate to reach out to Navigate Law Group for an experienced attorney to assist you.