Effect of Incarceration on Divorce ProceedingsIf divorce proceedings are commenced when one party is incarcerated, certain practical considerations will impact the timing and conduct of the proceedings. Firstly, certain additional steps may be required to ensure proper service of process for the incarcerated individual, in accordance with guidelines of the specific detention facility. It is best to check with the detention facility in question to ensure compliance with their guidelines.

Secondly, the participation of the incarcerated individual may become an issue as appearance in person is clearly out of the question. Some detention facilities impose restrictions on the ability of a detainee to participate via telephone. A motion may need to be filed with the court having jurisdiction over the incarcerated individual, in order to permit telephone participation in the DE divorce proceedings. In addition, another motion may need to be filed with the DE Family Court, requesting permission for the incarcerated party to participate via telephone. Communication with the incarcerated party to review evidence, as well as assess and perhaps resolve ancillary issues such as property division, spousal support or alimony, will pose additional challenges.

While the court will endeavor to afford an incarcerated individual all reasonable opportunity to participate in the proceedings, the incarcerated individual also has an obligation to take all reasonable steps to cooperate with the requirements and timeline stipulated by the DE Family Court. If the detained party can’t participate via telephone, the judge may order that written questions be submitted to the detainee, with a specific time frame for responses to be provided, in order to avoid undue delay of the proceedings, while nonetheless affording the incarcerated party an opportunity to participate.

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Article provided by guest blogger Pamela Stampp, Esquire (Licensed in NY and Jamaica) of The Castro Firm

The Castro Firm, Inc.
1719 Delaware Avenue
Wilmington, DE 19806
Phone (302) 225.5700
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