Pardon not to Restore Marital Rights

Going to prison for any length of time will put a strain on a marriage. Few marriages survive the lengthy incarceration of one of the spouses. Even if the spouse stands by the other spouse, it is difficult to sustain a marriage where the couple will be physically separated for years. In fact, imprisonment of one of the spouses for 3 years or longer is a grounds for divorce in New York. However, those who have been sentenced to long prison terms may be released early due to being pardoned. Nonetheless, once a marriage has been terminated, property divided, custody settled, and all other issues related to the end of marriage have been settled, a pardon does not restore the union or marital rights. If you have decided to end your marriage because your spouse is incarcerated, contact an experienced New York family lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience, we can help ensure that your interests are protected during this stressful time.

If you would like to get a divorce, in your divorce complaint you must state the grounds for your divorce. New York only recognizes 7 reasons for divorce, one of which is imprisonment. According to Dom. Rel. Law §170 (3), if your spouse has been imprisoned for at least at least 3 years, imprisonment can be a grounds for divorce. The imprisonment must have started after you got married, and the 3 years must be consecutive.

The other 6 grounds for divorce include: irretrievable breakdown in the relationship, cruel and inhuman treatment, abandonment, adultery, judgment of separation, and separation agreement. Even if your spouse has not been in prison for 3 years, you can still initiate an action for divorce based on another grounds such as irretrievable breakdown in the relationship which is the basis for a no-fault divorce. Of course, if there have been other issues in the relationship such as adultery or abandonment, then you can use one of the other 5 grounds as a basis for your action for divorce.

In an action for divorce, several different issues are settled, including division of property, allocation of debt, spousal maintenance, child support, and child custody. If a spouse has been sentenced to life in prison, the couple and the court will take that into consideration when making decisions on these issues. For example, the imprisoned spouse may agree that his or her spouse gets most or all of the property. After all, the imprisoned spouse will not be able to use the property because he or she will be in prison for life. These decisions related to property division may have been very different if imprisonment was not an issue or if the prison term was relatively short.

However, if the imprisoned spouse ends up receiving a pardon, and as a result is not in prison for life, according to NY Dom Rel Law § 58, nothing changes as far as marital rights. The property settlement does not automatically change, nor does the order related to the guardianship of a child change.

1. Property of married woman: New York Domestic Relations Law, section 50
2. Insurance of married person’s life: New York Domestic Relations Law, section 52
3. Action for divorce: New York Domestic Relations Law, section 170

A pardon granted to a person sentenced to imprisonment for life within this state does not restore that person to the rights of a previous marriage or to the guardianship of a child, the issue of such a marriage.

Going to prison is tough. A life sentence will have a dramatic impact not only on the life of the person sentenced, but on that person’s spouse, children, and extended family. If you are contemplating divorce from an incarcerated spouse, or if you are facing a legal matter related to divorce and incarceration, contact the experienced New York family lawyers at the Law Offices of Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Bronx, Nassau County, Queens, Brooklyn, Long Island, Manhattan, Staten Island, and Westchester County.