There are important considerations if someone is looking to bring a divorce or custody case against someone in who is incarcerated in a prison or jail. The law provides protections for the incarcerated party, and the costs will likely fall on the person bringing the action. This article will discuss things a spouse filing a divorce petition, or a parent filing a custody petition, should consider if the other party is incarcerated, including:
- What protections are there for a party who is incarcerated in a family law case?
- What does the requirement of a GAL mean for the Petitioner?
- Are there any other options?
- What other adults require the appointment of a guardian ad litem before a judgment is entered?
What protections are there for a party who is incarcerated in a family law case?
If one party is in prison, or otherwise incarcerated at the time of trial, the court will not enter a judgment without their presence in court. This means the case will not end if the party is imprisoned. Normally if the person being served the petition, the Respondent, does not participate in the case, the person filing the petition, the Petitioner, can ask the court to rule in their favor, called a default judgment. The Petitioner may ask the court for a default judgment, so the case does not extend indefinitely. However, Iowa rules explicitly prohibit a prisoner from having a default judgment against him or her. If the court does enter a default judgment, the Respondent can ask that the judgment be voided, or made legally invalid, at any time.
The only way a court will allow grant a judgment in the case without the incarcerated party present is a guardian ad litem (GAL) is appointed for the person in prison. The GAL is responsible for representing the imprisoned party’s interests in any court proceedings.
What does the requirement of a GAL mean for the Petitioner?
The Petitioner is usually required to pay for the costs of the GAL. Prior to beginning a divorce or custody case, it is important to contact local GALs to find out what their hourly rates are. These rates are usually similar to those of other attorneys, but in extreme situations they may be willing to help for a reduced rate. It will usually be a significant expense, on top of the Petitioner’s own attorney fees, court costs, and other costs of the case.
Are there any other options?
The easiest option is to get the imprisoned party to sign a stipulation agreeing to terms of the divorce or agreeing to custody terms. If the prisoner signs the agreement, called a stipulation, the court will not require a GAL be appointed. There are cases which say a prisoner does not need a GAL if they freely agree to a stipulation. The court put the terms of the stipulation into a final decree, and the case will conclude.
If the person is incarcerated in a county jail connected or very near to the courthouse, it may be possible to have the prisoner brought over from the jail to represent himself of herself. Contact the courthouse where the case is filed to see if they are able to bring the Respondent over to the courthouse at the time of trial. This is risky, as prisoners are often moved, and court proceedings can be rescheduled at a moment’s notice.
There may also be volunteers legal services available in the local area. The Iowa Bar Association may put a party in need of a GAL with an attorney willing to serve in that role for a low cost.
What other adults require the appointment of a guardian ad litem before a judgment is entered?
Normally GALs are applied to represent children. However, adults unable to be present because they are in a state hospital for the mentally ill, judged to be “incompetent” under the law, or declared mentally unable to defend themselves in a court action may also need a GAL appointed.
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