Virginia’s jails and prisons held 66,503 prisoners as of 2016, according to The Sentencing Project1. The jail population alone was 28,690, with more than 10 times as many men as women serving time. Despite spending hours, weeks, and years behind bars, these men and women still retain legal rights, including the right to defend themselves against suits for divorce.

Suits Against Prisoners

Divorce, in the eyes of the Code of Virginia, is one of the very few areas for which lawsuits against prisoners is permitted. Under § 53.1-223,

“No action or suit on any claim or demand, except suits for divorce, actions to establish a parent and child relationship between a child and a prisoner and actions to establish a prisoner’s child support obligation, shall be maintained against a prisoner …”

Virginia is not shielding its prison population from lawsuits as a gesture of goodwill; prisoners, because of their unique housing and situation, are considered to have disabilities, legally, and are therefore deserving of free legal counsel.

Each prisoner can have a guardian ad litem appointed to represent him in any legal issue. The phrase literally means “guardian for the lawsuit,” so the state does not wish to entangle itself in countless lawsuits using taxpayers’ money to defend prisoners.

Divorce Suits & Incarcerated Individuals

Since divorce is one of the cited reasons to permit a lawsuit to proceed against a Virginia prisoner (whether in jail or state prison), you as an incarcerated inmate do have the right to an attorney.

Code of Virginia § 8.01-9 outlines how the state will pay an attorney for guardian ad litem service, and under what limitations a defense against divorce can be paid for by the state.

Unless you hire your own attorney to zealously defend you against the divorce while you serve time, you are very much “stuck with” the court-appointed guardian ad litem. This has its good points and bad points:

  • The attorney’s service costs you nothing
  • The attorney may not provide the same level of service to your case as a privately engaged attorney; all the law requires is “a discreet and competent attorney”

Your wife, seeking the divorce, will pay for the guardian ad litem unless she is divorcing you because you are incarcerated for a crime against her, your children, or stepchildren. In those circumstances, the state pays.

Serving One Year Or Longer

The law is also on your side if you are serving a short sentence. Your wife cannot divorce you for spending 30 days in the county pokey; under § 20-91, one of the few fault grounds for divorce in Virginia is,

“Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement …”

Notice the law says “subsequent to the marriage,” meaning you had to have been convicted after you two married. Jailhouse romances cannot lead immediately to jailhouse divorces.

Further, if she knows you are only serving 30 days, she cannot claim a fault ground for divorce. She may have other reasons to divorce you, or be willing to wait for the separation period, but she cannot divorce you while you are serving a short sentence in a county jail.

If she knows you are serving more than one year, and the jail or prison has not permitted conjugal visits, she can file for divorce from you.

Service of Process in Jail or Prison

One of your rights as a citizen of Virginia that you do not give up while in jail is the right to proper notification of suits against you. This service of process means you must be served with papers indicating a suit for divorce has been filed against you. Here again, though, the legislators have thought this through. Code of Virginia § 8.01-297 (“Process on Convict Defendant”) stipulates that your spouse must have the papers served not to you but to the “officer in charge of such jail” and to your guardian ad litem.

Hire an Experienced Family Law Attorney

Hiring a member of Virginia’s Bar Association is better for any incarcerated prisoner than relying on an appointed guardian ad litem. Behind bars, you may not have access to all the tools needed for a strong defense of your rights. Selecting a private family law attorney may be an expense you may not want during a time when you have few resources, but the consequences of a misstep could be more costly.

Please call The Firm For Men at 757-383-9184 no matter your housing situation or circumstances. If your current address is 2501 James Madison Blvd, VA Beach, VA 23456-9073 (the Virginia Beach Correctional Center) or another of the state’s penal institutions, please contact us or have a friend or relative contact us. We can help. Our daily goal is to provide the best defense for Virginia’s men in family law matters, no matter where they live.