Divorcing a spouse who is incarcerated in jail or prison is often not a lot different than divorcing a spouse who is not incarcerated. As with other divorces, much of the divorce process will be determined by whether (1) the divorce is uncontested and the spouses are able to agree on how to resolve all issues, including the division of property, the division of debts, child custody, child support, and spousal support; or (2) the divorce is contested and the case must proceed to trial for the judge or jury will determine all such issues.

An incarcerated spouse is entitled to notice of the lawsuit for divorce and must be served with the lawsuit in jail or prison unless the incarcerated spouse agrees to waive service of process. Laws vary from state to state and (1) an incarcerated spouse may be entitled to participate in court proceedings by video or phone; (2) an incarcerated spouse may be permitted to attend divorce proceedings in the courtroom; or (3) an incarcerated spouse may hire an attorney, or may be required to have an attorney appear at divorce proceedings.

Although there may be fault-based grounds on which a spouse can seek a divorce from an incarcerated spouse, most such divorces are sought on no-fault grounds.

In Virginia, divorcing an incarcerated spouse follows similar procedures to divorcing a non-incarcerated spouse. The process can be either uncontested, where both parties agree on issues such as property division, debt allocation, child custody, support, and alimony, or contested, requiring court intervention to resolve these matters. The incarcerated spouse has the right to be notified of the divorce action and must be served with the lawsuit in the correctional facility unless they waive this requirement. Virginia law allows for the possibility of the incarcerated spouse to participate in court proceedings via video or phone, and they may also have the option to attend in person or be represented by an attorney. While there are fault-based grounds for divorce, including incarceration for a certain period, many opt for no-fault divorces, which do not require proving wrongdoing by either party.