Implications on Divorce and Custody if an Ex-Spouse/Partner is in Jail
Consider this scenario: A married couple or domestic partners have mutually decided they no longer work as a couple. The plaintiff is prepared to file a complaint and start the divorce process, when she learns that her ex was arrested. Not only was he arrested, he cannot post bail and will be remanded for months. What does this mean for the plaintiff’s custody or divorce case? Can she proceed with filing if the other party is incarcerated? If the scenario is all too familiar or if you know someone facing a similar dilemma, contact our attorneys at Eveland & Foster to learn about your options.
Contested Custody Disputes
If your spouse or partner was arrested for a domestic violence or child abuse charge, and you or your children are the victims, you can file an emergency protective order against him or her. The protective order will grant you exclusive access to the family home, vehicle, and monetary assets, and it will also order the respondent to pay utilities, mortgage, and upkeep, remain away from you and your children, and surrender all firearms. The court can also ask the respondent to attend counseling or other rehabilitative treatment.
The repercussions of a criminal domestic abuse charge on an ongoing custody dispute can be dire for the defendant. The court will examine the defendant’s criminal history, culpability, and likelihood to commit an offense against you or your children. Most importantly, the family court judge will make his or her determination based on what is in the best interest of the children. If the children are in danger, are emotionally, physically or mentally abused or are otherwise unsafe with the defendant due to a history of violence, drug abuse or other incapacity, the court may award the plaintiff with primary legal and physical custody. In that case, the court would grant supervised visitation the defendant provided he or she is no longer incarcerated.
Proceeding if the Other Party is Incarcerated
If incarcerated, the defendant still has the right to speak at a court hearing for custody or divorce issues. He or she would need to arrange for a video or teleconference with his detention or prison board so that they could attend the hearing. They are not entitled to a lawyer for a family law issue, but are entitled to representation for criminal defense matters. In addition, if the parties are already divorced and the plaintiff learns the defendant has been arrested, the plaintiff can file a motion for an emergency hearing to modify custody if the parties previously shared joint custody or a modified 50/50 plan. If this is the case, it is important you act urgently to protect your child’s safety and interests.
Even if the other party is still in jail, you can proceed with a divorce filing. You must ensure that the defendant is served with a writ of summons and a copy of all pleadings filed with the court. This might require contacting the detention center or jail where the defendant is jailed to determine his or her mailing address and confirming receipt to certify service of process. Also keep in mind that in New Jersey, the plaintiff or party to a suit cannot serve the defendant personally or mail pleadings directly. The plaintiff can hire a private process server or hire an attorney who would handle all aspects of the divorce and custody case. Ultimately, the presiding judge will want to ensure that the defendant was notified of a potential hearing date, and the nature of the suit. If you are contemplating divorce or are already divorced and need to request a modification to custody or support arrangements, contact our lawyers as soon as possible.
Call Eveland & Foster Family Law Today
If you or someone you know is contemplating divorce, but your partner has a criminal record, or you recently learned they were arrested, you may be wondering what your options are. Because advice will be narrowly tailored to your unique circumstances, it is critical that you speak to a family law attorney as soon as possible. Our lawyers at Eveland & Foster possess decades of combined experience handling all family law matters. We are a small, local law firm practicing in Morristown, New Jersey with a focus on providing our clients with personalized and driven results. Even the most contentious cases are not too much for our firm to handle. Contact our office today to schedule a consultation.