What Happens if My Spouse Goes to Prison During Our Divorce?

 Posted on May 13, 2026 in Divorce

Few things can complicate a divorce as much as a spouse being arrested. Criminal charges mean another legal process starts while your divorce proceedings are already in progress. It can be overwhelming to try to figure out how this will affect your own case.

If your spouse gets arrested before a divorce is finalized, our Tarrant County, TX divorce attorney can help you understand what to do to keep your case moving forward.

Does Your Texas Divorce Case Stop if Your Spouse Goes to Prison?

Incarceration doesn't stop a divorce from moving forward. Texas law doesn't require both spouses to be free and available for a divorce to be filed or finalized. The most important thing is that your spouse be properly served with divorce papers and given the opportunity to respond during proceedings.

If your spouse is jailed or incarcerated, they can typically be served through the prison system they are in. From there, they have the right to take part in the proceedings. In 2026, this may mean appearing via phone or video. They could also submit written responses through an attorney. Courts take steps to ensure that an incarcerated spouse isn't shut out of the process, even when they're in custody.

If your spouse doesn't respond or chooses not to take part, you may be able to move forward with a "default" divorce. A default means the court can enter a judgment without input from your spouse.

How Does Incarceration Affect Property Division and Support Orders in Texas?

Texas is a community property state. This means that most assets and debts acquired during the marriage are owned equally by both spouses. Under the Texas Family Code, Chapter 7, courts divide community property in a way that is "just and right." The court takes into account each spouse’s circumstances when dividing property. Incarceration and the events that led to it can factor into the court’s decision.

A spouse who is in prison has little to no income, which affects their ability to pay spousal or child support. Texas courts can still order support, which stacks up as a debt that your spouse is obligated to pay when they get out. Alternatively, the court will sometimes use your spouse’s assets to pay child or spousal support.

What Happens to Child Custody When a Parent Is Incarcerated in Texas?

Texas courts make custody decisions based on the best interest of the child. An incarcerated parent cannot serve as a "primary conservator" (a person who gets to make decisions about the child’s upbringing). The court will typically give sole managing conservatorship to the parent who is available and able to care for the children.

Whether the incarcerated parent gets any visitation or contact rights depends on what crime they committed, the length of their sentence, and what the court decides is in the child's best interest. It’s important for courts to look at crimes that had a direct effect on you or your family. A spouse who committed family violence may have limited custody when they are released from prison, or no custody at all.

What Should I Do Next if My Spouse Goes to Prison During Our Texas Divorce?

A few simple steps can make it easier to proceed with your divorce after your spouse has been imprisoned:

• Find out the proper way to contact your spouse while they’re in prison, whether this is through the prison system or their attorney.
• Get documentation of any violent or criminal behavior from before your spouse’s arrest to show your own attorney. This can support your case for getting and keeping long-term custody of your children if your spouse was abusive.
• Continue to show up for court dates and other legal appointments. Missing court dates will only add to the complications in your case and can come with their own charges.

If you have children and your spouse is going to prison, getting a custody order in place quickly protects your ability to make decisions for your children without interference or legal uncertainty.

Call a Dallas, TX Divorce Attorney Today

Going through a divorce while your spouse faces incarceration raises legal issues that are best handled by someone who understands both family law and the criminal justice system. Our Tarrant County divorce lawyer is a former prosecutor for the Dallas County District Attorney's Office with more than 25 years of legal experience. Call the Law Office of Michelle Poblenz at 469-845-3031 today to schedule a consultation.