How long does my husband have to be in jail before I can divorce him?

States allow individuals to divorce incarcerated spouses where reasons have to be alleged for the divorce. Requirements for imprisonment as grounds for a divorce include the following:

• Incarceration for a statutory length of time
• Crime a felony or heinous in nature
• Crime was against petitioning spouse
• Parties have not co-habited or had conjugal visits.

Only a innocent spouse is usually allowed to bring this action.

In some jurisdictions, the length of imprisonment required before a divorce is allowed is a minimum of one year. However, other jurisdictions require a longer period. For example, New York requires that a defendant spouse have been imprisoned for at least three years before an action for divorce may be brought. This applies even if the conviction is later overturned or reversed. The imprisonment must be physical and the years must be consecutive.

In New Jersey, the minimum jail time is eighteen months or more after the marriage. Additionally, the parties must not have resumed co-habitation after the spouse's release from prison.

In Alabama, the imprisonment must be for at least two years on a sentence that is seven years or longer.

Again, how long your husband has to have served depends on your state's at-fault grounds. Your spouse does not have to consent to the divorce. All you have to do is prove that he is in prison. However, he does have to be served so you will need to have papers sent to him per your state requirements. You can serve him with a process server or through  your attorney.

If you may not divorce your husband because of his imprisonment, you may also divorce him on other grounds, such as prior cruelty or domestic violence. Additionally, if your state provides a no-fault ground, you may file for a no-fault divorce.

Talk with an experienced attorney regarding possible grounds for divorce in your case.