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Divorcing a Jailed Spouse

By Tom Perrotta

There is no question that under New York law, having a jailed spouse is grounds for divorce, but one appeals court is divided on how much time a free spouse has to act on that option.

In a split opinion, the Appellate Division, Second Department, ruled that a 5-year statute of limitations applies to those seeking divorce from a spouse who is in prison. Under the ruling, the statute of limitations begins to run once the jailed spouse has served 3 consecutive years. After 8 years of consecutive incarceration, then, a free spouse would not be able to divorce a jailed spouse simply because he or she remained in jail.

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