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You would file a divorce as you would normally and then have it sent to the correctional facility in which he is housed for service. He would then have the option of representing himself or retaining private counsel. If he represents himself, he will be required to handle himself like any other litigant would. The one real exception is that he can't, of course, attend any court dates. Instead, arrangements would need to be made to have him appear by phone.
In some ways it is actually easier to divorce an inmate; he's easy to locate, he has nothing to do other than prepare for the case and he has little to no leverage in addressing any issues of the divorce.
Actually, I did answer that but I will try to be more clear....
If he contests, you would file motions, set hearings and possibly even have a trial, just as you would if he were NOT an inmate. The only difference, of course, is that he cannot appear in court as the federal system will NOT transport him for a civil matter. However, the court system can set it up to have him appear by phone.
I actually have a case right now where I'm doing this exact thing. I represent a mother and the father is in prison. Every hearing that we have, the judge's assistant sets it up to have the father appear by phone from his prison.
So, the procedure is quite similar to what it would be if he were not incarcerated, the only real difference is the inability to physically appear in court.
Additionally, as I indicated before, you should easily prevail on all issues as he is in no position to really argue for anything.
Well, I don't know if I would go so far as to say you will "win" on all issues, I only mean to suggest that it's difficult for him to put forth any real argument.
For example, if you have children, he certainly can't argue for custody or even, for any practical purposes, visitation. Similarly, if you own a home, he can't argue for possession of the house as he is incarcerated. Not to mention it will be hard for him to 1) obtain evidence 2) subpoena witnesses or 3) present evidence. My point is that his current situation (being in prison) makes it really tough on him.
Absolutely, he cannot PREVENT the divorce. Any person, whether incarcerated or not, can contest a divorce but it will ultimately happen.
So, go ahead and file for divorce, see how he responds, and then proceed accordingly, knowing that you WILL be able to obtain the divorce despite his incarceration.
It's difficult to state with certainty. If he does not contest, the divorce could be completed in a couple of months. If he does contest, it might last about a year, depending hugely on the judge's schedule. If I understand it correctly, you don't have kids or own a home, that certainly should help keep it short and simple.
I'm going off-line for the evening but feel free to respond, if necessary, and know that I'll be back on-line tomorrow.
Thank you for your patience.
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