Can I divorce my incarcerated husband if he refuses?

I now live in North Carolina and he is incarcerated in South Carolina. He has
been in prison since about 2004 and the last I talked to him was me asking him
for a divorce and him refusing. How can I legally divorce him to have him out
of my life forever?

Asked on January 11, 2018 under Family Law, North Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, you can divorce him over his objections or refusal: the law does not let one spouse keep another "prisoner" in a marriage or require you to stay married forever. You don't need his permission to divorce. However, him being incarcerated does procedurally complicate matters, because he does have a right to be served with papers and participate in the divorce case, which is clearly more awkward and challenging when he is in jail. So while you absolutely can get divorced, it may be difficult for you to manage the process--which will typically involve properly filing a divorce case (a lawsuit) in family court--as a layperson. Hire  a lawyer, even if you need to save up for it or borrow money from family: a lawyer will help you navigate the court system and get divorced as quickly as possible despite the complications imposed by his incarceration.

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