Ningbo party is in jail, how to divorce, children and property- Zhiheng Law Firm

If a spouse is convicted of a criminal offense and sent to prison, does that mean the marriage can only remain “in name only”? To get straight to the point:It is possible to divorce, and you do not have to travel to the location of the prison to file a lawsuit. In cases where one spouse is serving a prison sentence, the other party may file for divorce with the people’s court at their domicile or habitual residence. Courts typically coordinate with the prison to conduct hearings either by holding sessions at the prison or via remote video conferencing. There are three points to be psychologically prepared in advance: the road of divorce by agreement is basically impassable in reality; child raising and property division should be clearly stated in the same lawsuit; divorce will not be automatically established because the other party is "in jail", and the court still needs to examine whether the relationship has indeed broken down.

1. Can a couple still get a divorce by agreement if one spouse is serving a prison sentence?

Let's start with a premise that is easily misunderstood. When a person is sentenced and incarcerated, what is deprived is their personal liberty, not their capacity to hold civil rights or their procedural rights.In-prison inmates are, in principle, still persons with full civil capacity and, in accordance with the law, enjoy the rights to marital autonomy, to bring suit, and to defend themselves.The vast majority of fixed-term and life imprisonment sentences do not automatically entail the deprivation of political rights. Therefore, the claim that “once he’s in prison, he has no right to file for divorce” is a misunderstanding.

However, the mere existence of rights does not mean that a divorce by agreement will necessarily go through. For a divorce by mutual consent, both parties must act voluntarily, sign a written divorce agreement, and then personally apply for divorce registration at the marriage registry. After a 30-day cooling-off period, they must again appear in person to receive the divorce certificate (Articles 1,076 to 1,078 of the Civil Code). The key word is “in person”—no proxy representation is allowed in divorce by agreement; both parties must be present.

The problem lies right here. Inmates have their personal freedom restricted and are unable to go to the registration authority on their own; even if the prison cooperates by providing identity verification documents, the inmate still cannot appear in person to handle the procedures. In practice, prisons generally do not approve inmates’ requests to leave the facility to register for divorce. Therefore, when one party is serving a prison sentence,Amicable divorce faces very real obstacles, and in the vast majority of cases, it can only be resolved through litigation.. In some regions, registration authorities have conducted on-site procedures at prisons, but this practice lacks broad institutional support and cannot be relied upon. The correct approach is to file for divorce directly and resolve all issues—whether the divorce can be granted, custody of the children, and division of property—in a single lawsuit.

2. Which court should I file the lawsuit with?

Jurisdiction is the most easily mismanaged aspect in cases of this type. In ordinary civil cases, the principle of “plaintiff versus defendant” applies, and the lawsuit must be filed with the court in the defendant’s domicile. However, Article 23 of the Civil Procedure Law specifically provides an exception:The following civil lawsuits shall be under the jurisdiction of the people’s court in the plaintiff’s domicile; if the plaintiff’s domicile and habitual residence are inconsistent, they shall be under the jurisdiction of the people’s court in the plaintiff’s habitual residence… (III) Lawsuits brought against persons subject to compulsory education measures; (IV) Lawsuits brought against imprisoned persons.

When applied to divorce, the conclusion is:If the defendant is in custody, jurisdiction lies with the people’s court in the plaintiff’s domicile; if the plaintiff’s domicile and habitual residence are not the same, jurisdiction lies with the people’s court in the plaintiff’s habitual residence.This legislative arrangement is in place because inmates are often incarcerated in locations other than their place of residence; requiring all prosecutions to be filed at the place of incarceration would impose an unnecessary burden on the party who has not yet served their sentence. The term “habitual residence” here refers to the place where a citizen has continuously resided for more than one year from the time they left their domicile until the date of filing the lawsuit (excluding periods of hospitalization for medical treatment). For example, family members whose household registration is in Anhui but who have been continuously residing in Ningbo for more than one year may file a lawsuit in a court with jurisdiction in Ningbo, without having to return to Anhui or go to the place where their spouse is serving a prison sentence.

Two situations must be clearly distinguished:

If only the defendant is in custody: Article 23 shall apply, and jurisdiction shall lie with the people’s court at the plaintiff’s domicile or habitual residence. In its relevant jurisdictional rulings, the Supreme People’s Court has also made it clear that where only the defendant is in custody, jurisdiction lies with the people’s court at the plaintiff’s domicile, and the case may not be transferred to the place of detention.
Both parties are in custody: The provisions of the Interpretation of the Civil Procedure Law shall apply—jurisdiction lies with the people’s court at the defendant’s original domicile; if the defendant has been in custody for more than one year, jurisdiction lies with the people’s court at the place of detention.

There are two calibres about the scope of the "imprisoned person": the case of the Supreme People's Court (the case of Chen Moumo v. Zhang Mouliang, the case of the case of storage No. 2024-01-2-022-001) is considered to include convicted and unconvicted criminals; while the "Civil Procedure Law" understands and applies a type of information citing relevant rulings, which mainly refers to the situation of serving a sentence in prison after judgment. The prudent approach is to first confirm that the other party has been sentenced by a final criminal judgment and is serving a prison term; if the case is still in the investigation, prosecution, or first-instance stage with an unEffective judgment, there may be disputes over jurisdictional competence, so it is advisable to verify this with the case filing window prior to filing a lawsuit.

The last exception:If the defendant is not in custody, jurisdiction reverts to the “plaintiff versus defendant” rule. Bail pending trial, probation, parole, temporary execution outside prison, and release upon completion of sentence. Under these circumstances, the other party has not been deprived of his personal freedom and does not belong to "imprisonment". He should file a lawsuit in the court of the defendant's domicile or habitual residence, and Article

23cannot be applied.

3. How to hold a court hearing

With the defendant in prison, will the trial come to a halt? No—though there may be a few additional procedural steps, the case can still proceed as normal.

The first step is delivery. If the defendant is imprisoned, the court usually transmits it through the prison where he is located: the copy of the indictment, the notice of response, the notice of proof, the court summons, etc. are handed over to the prison for his signature, and the prison will generally issue a signature certificate. This step seems to be technical, but it is related to whether the judgment can stand-if the service materials are incomplete and the receipt is missing, once the subsequent judgment is made in default, it may be remanded for retrial or retrial by the higher court on the grounds that "litigation rights are not guaranteed.

The second step is to determine the method of court session, which mainly includes three types:

Court hearing at the prison (roaming trial): The presiding judge and the court clerk, together with the plaintiff, go to the prison to hold the hearing in the visiting room or a designated venue.
Remote video court session: It is more common at present. The court and the prison are connected via video conferencing, allowing the incarcerated party to participate in the trial from within the prison ward, thereby completing their defense, cross-examination, and mediation.
judgment by default: if the defendant refuses to appear in court without justifiable reasons after being summoned by a summons, or withdraws from court midway without the permission of the court, the judgment can be made by default (article 147 of the civil procedure law).

Judgment in absentia is expressly limited. If there is an agent ad litem in a divorce case, I should still appear in court except for those who cannot express my intention; if it is really unable to appear in court due to special circumstances, I must submit a written opinion to the people's court. Serving a sentence belongs to "special circumstances", and the party serving the sentence can appoint an agent and submit written opinions on whether to agree to divorce, child support and property disposal at the same time. As long as the service is legal, serving the party's defense, cross-examination, statement opportunities are guaranteed, even if I do not appear in court, it does not necessarily constitute "absence", the court can hear the judgment in accordance with the law. Therefore, after receiving the litigation documents, the incarcerated party should not ignore them; instead, they may submit a written response, appoint a lawyer, or authorize a qualified close relative to act as their representative, and, if necessary, apply for the trial to be held within the correctional facility.

How to raise 4. children

After divorce, the relationship between parents and their children is not eliminated, and no matter who directly raises the children, they are still the children of both parties (Article 1084 of the Civil Code). Who exactly belongs to, the law gives a clear level: For children under the age of two, the principle is to be directly raised by the mother; for those who have reached the age of two and fail to reach an agreement, the court shall decide according to the principle that is most beneficial to the minor children; for those who have reached the age of eight, their true wishes shall be respected.

falls into the background of serving sentences, and the practical tendency is relatively clear: The party serving the sentence is generally not suitable as the party directly supporting because of the limited personal freedom and the lack of conditions and ability to directly support objectively. In many cases, the defendant was sentenced to a long sentence and was serving his sentence, and the court decided that the party who did not serve the sentence should directly support him, and explained that the party who served the sentence "has no conditions and ability to support him temporarily". However, this does not mean that the party serving the sentence has nothing to do with the children, and their status and visitation rights are still protected by law.

Maintenance is another reality. The parent who does not have direct custody of the child shall bear all or part of the child support expenses; the amount and duration shall be determined by agreement between the parties, and if no agreement is reached, the court shall make a ruling (Article 1085). Generally, the amount may be set at twenty to thirty percent of the monthly total income. The problem is that inmates typically have no income during their incarceration:

Discount with property. Relevant judicial rules clearly stipulate that, where one party has no income or their whereabouts are unknown, their property may be used to offset child support obligations. If the party serving the sentence has a share of deposits, vehicles or real estate in the name of the party, it may be offset.
After getting out of prison. During the period of imprisonment, if the individual objectively lacks the ability to pay, the court may rule that payment be temporarily suspended, or specify a definite amount but allow for deferred performance.
Reserved right to claim in the future. In practice, there is such a treatment: the party who has not served the sentence voluntarily bears all the maintenance during the sentence, and at the same time clearly reserves the right of the child to claim maintenance after release from prison to the party serving the sentence in the future.

It should be reminded that: maintenance is a legal obligation, serving a sentence is not exempt, but the way and time of performance will be adjusted according to the situation. After the judgment takes effect, an application for compulsory enforcement may be filed; if no income is earned during the period of imprisonment, the obligation may be satisfied by offsetting with property or pursued after release from prison.

How to divide 5. property

First clear attitude:The fact that one spouse is serving a prison sentence does not alter the nature of the couple’s joint property; what is to be divided will still be divided. The salary, bonus, production and operation income, intellectual property income and so on during the existence of the marriage relationship generally belong to the joint property of husband and wife. In the event of divorce, the common property shall be disposed of by agreement between the two parties; if the agreement fails, the court shall decide on the basis of the specific circumstances of the property and in accordance with the principle of taking care of the rights and interests of the children, the woman and the party without fault (Article 1087).

However, since one party is in prison, there are several points to pay special attention:

Thoroughly check and fully list all assets. The party serving the sentence is often unable to check the property at the scene. If the complaint only says "divide the common property according to law", some accounts, shares and vehicles that are not easy to find may be missed. It is prudent to sort out real estate, bank accounts, vehicles, equity, etc. in advance and submit them together with evidence.
Pay attention to the creditor's rights and debts of the party serving the sentence. The joint debts of the husband and wife shall be repaid together, and the debts incurred by the individual serving the sentence and not used for the joint life or joint business of the husband and wife shall generally be borne by the individual. If there is an agent managing their accounts, it is advisable to state this in the complaint as well.
Distinguishing the property-related consequences of criminal liability. Fines and confiscation of property are penalties imposed by the court on offenders and, in principle, apply only to the personal assets of the convicted individual; they should not be borne jointly by the offender’s spouse. However, if the execution of the property penalty intersects with the common property of the husband and wife, the share belonging to the spouse shall still be protected.
Be alert to the transfer of property by the other party. If it is found that one party serving a sentence or his relatives have hidden, transferred, sold, destroyed or squandered common property, the party may be divided less or not divided at the time of division. If the above-mentioned acts are discovered only after divorce, a separate lawsuit may be filed for re-division (Article 1092).

The Influence of 6. Sentence on Divorce Damages

Be extra cautious here. Article 1091 of the Civil Code stipulates that if one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (II) cohabitation with another person; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other major faults. The fifth item is a new pocket clause in the Civil Code.

then, does the spouse committing a crime and serving a prison sentence naturally constitute "other major faults", and the other party can certainly claim compensation? we cannot simply draw an equal sign like this.

If the crime itself is aimed at the spouse or family members, such as bigamy, domestic violence, abuse, abandonment, rape, etc., or its illegal behavior seriously hurts the feelings of the husband and wife, the no-fault party's claim for damages is more likely to be supported.
If it is only a pure economic crime or property crime (such as fraud, theft, illegal business operation), and does not directly infringe on the spouse's personal or property rights and interests, whether it constitutes "other major faults" should be judged by the court according to the nature of the crime, the impact on the family and the degree of injury to the couple's feelings, and it does not necessarily produce damages.

It should also be noted in the procedure: if the innocent party acts as the plaintiff, he should file a claim for compensation at the same time as the divorce proceedings; if the defendant does not agree to the divorce and has not filed a claim, he can file another lawsuit within one year after the divorce; the case where the divorce is not allowed by the judgment generally does not support the claim for compensation; if the divorce agreement has been explicitly abandoned, it is generally not supported afterwards. The scope of compensation includes material damages and moral damages.

Practical Problems after Divorce by 7. Judgment

What about visits. After divorce, the father or mother who does not directly raise the child has the right to visit the child, and the other party has the obligation to assist (art. 1086). The person serving the sentence is only deprived of personal freedom, and the right of visitation is not included in the deprivation. Since the party serving the sentence cannot come voluntarily, the visiting method is generally: the party directly raising the child applies to the prison for an interview, takes the child to the prison for an interview, or realizes it through a remote video interview. Children, as relatives, are generally eligible to apply for an interview, but they need to go through the formalities in accordance with prison regulations. If the visit is indeed detrimental to the physical and mental health of the child, the court may suspend the visit in accordance with the law and resume it after the cause has disappeared. The law does not provide for "permanent termination" of visitation rights, It is common to negotiate "suspension during serving a sentence and recovery after being released from prison".

What should I do if child support enforcement is required?After the judgment takes effect, the other party may apply for compulsory execution if it refuses to perform. If there is no income during the sentence, the property shall be used to offset it, or the execution shall continue after the sentence is released; the "right to claim later" reserved in the judgment may also be implemented accordingly.

What if you want to remarry after serving a long sentence. If both parties are willing to resume their marriage after their release from prison, they need to register their marriage again instead of "remarrying automatically" (art. 1083).

8. practical suggestions

Gather the above into several actionable suggestions:

The evidence is prepared to be "proven to be serving a sentence". The primary evidence is the effective criminal judgment of the other party, which is used to prove the crime, the term of imprisonment and the place where the sentence is served; the second is the marriage relationship certificate (the marriage certificate, the lost can go to the original registration authority to supplement the "marriage registration file certificate"), the birth certificate of children, the property evidence, and the evidence of emotional breakdown (long-term separation, the other party's bad habits, etc.).
Make good use of commissions and written comments. The party serving the sentence may appoint an agent ad litem and submit written opinions; the party not serving the sentence may also appoint a lawyer. In principle, the parties to a divorce case should appear in court, and if they are unable to appear in court under special circumstances, they must submit written opinions.
Keep an eye on the program details. When filing a case, confirm that the jurisdiction is correct, confirm whether the service is standardized before the hearing, and cooperate with the court and the prison to coordinate the hearing method.
Let the verdict "fall to the ground". After takes effect, apply for compulsory execution in time for the enforceable contents such as property delivery and alimony payment.
Raise all the compensation claims at once. If the other party’s criminal conduct has indeed infringed upon your personal or property rights and constitutes one of the circumstances set forth in Article 1091, you should, where possible, raise this claim concurrently in the divorce proceedings.

9. Frequently Asked Questions

Question 1: The other party is currently serving a prison sentence. Do I have to file the lawsuit in the court located at the prison’s jurisdiction?No need. Lawsuits brought by or against persons in custody shall be under the jurisdiction of the people’s court in the plaintiff’s domicile; if the plaintiff’s domicile differs from their habitual residence, the case shall be under the jurisdiction of the people’s court in the plaintiff’s habitual residence. In principle, you should file a lawsuit in the court where you usually reside.

Question 2: If the other party has been sentenced to prison, will the court definitely grant a divorce?Not necessarily. The standard for granting a divorce is “the marital relationship has indeed broken down, and mediation has failed.” If one party is sentenced to long-term imprisonment (usually understood to be more than five years) in accordance with the law, or if his criminal act seriously hurts the feelings of the husband and wife, he will usually be deemed to have broken down and granted divorce; if the sentence is short, the other party firmly disagrees, and the emotional foundation of both parties is still there, the court may also give an opportunity to refuse divorce.

Question 3: If the other party does not agree to the divorce, will the case be indefinitely delayed just because they are in prison?No. The court may conduct trials by holding hearings at the prison or via remote video conferencing; if the defendant, having been lawfully summoned, fails to appear without justifiable reason, a default judgment may be rendered.

Question 4: If the other party has no income while incarcerated, is child support still required?Child support is a legal obligation and is not automatically discharged by imprisonment. If there is no income, payment may be made by offsetting with the person’s property, or it may be agreed that payment will be made after release from prison; alternatively, the judgment may reserve the child’s right to assert such claim in the future.

Question 5: After a divorce, can I still take the children to visit the other parent in prison?Sure. The right to visitation is not lost due to the other party’s imprisonment; as a relative, the child may generally apply for a visit, but must follow the procedures prescribed by the prison. If visitation is detrimental to the child’s physical and mental health, the court may, in accordance with the law, suspend it, and resume it once the grounds for suspension have ceased to exist.

Question 6: If the other party’s assets have been subject to a fine or confiscation, can I still receive my share?Fines and the confiscation of property are imposed on the individual serving the sentence; your share of the marital joint property may still be claimed. However, if your share overlaps with the enforcement of property-related penalties, it may be affected; therefore, it is advisable to raise your claim as early as possible and participate in the proceedings promptly.

10. Practical Legal Insights

When a spouse is serving a prison sentence, many parties mistakenly assume that “as long as the person is not present, the marriage cannot be dissolved,” or they worry that they will have to travel to the place of detention to file a lawsuit. The reality is that the path of divorce by agreement is virtually blocked, as registration requires both parties to be present in person, which detainees cannot do; however, divorce through litigation has proven to be smoother than expected. There is a rule of jurisdiction that is obviously friendly to the party who has not served the sentence-if the defendant is imprisoned, it shall be under the jurisdiction of the court of the plaintiff's domicile; if the plaintiff's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the court of his habitual residence. In other words, as long as you have continuously resided in the local area for one year, you may file a lawsuit there without having to travel long distances to the place where the other party is being detained. Before you begin, make sure you have your proof of residence and documentation of your length of residency ready. If this step is handled incorrectly, your application may be rejected or transferred, wasting valuable time.

Since litigation is the most likely course of action, we should make full use of a single lawsuit. When prosecuting, the application should not only be written as "request for divorce", but should be listed together with child support, alimony, property and debt, on the grounds that it is inconvenient for such defendants to appear in court, and the cost of prosecuting another case is high and the cycle is long. In terms of court sessions, the court will usually coordinate with the prison to hold court sessions or remote video hearings. You should cooperate with the submission of identity materials and evidence catalogues, and confirm the method of court sessions in advance to avoid temporary rescheduling. The service and response to the lawsuit should also be psychologically prepared. The exchange of documents may be slow. It is better to prepare the evidence at one time: marriage certificate, birth certificate of children, property clues of both parties, materials of emotional breakdown, and records that can show that you have been raising alone for a long time and have undertaken family obligations. These factors affect both the divorce decision and issues related to child custody and property division.

In negotiations and to avoid pitfalls, the incarcerated party often has specific concerns: sentence reduction, prison conduct, post-release resettlement, and visitation arrangements—these can all serve as leverage to encourage their consent to divorce. Rather than waiting passively for a court decision, it is advisable to negotiate, through prison‑based correspondence and via family members, a feasible plan for property compensation and child support arrangements, formalize it in writing, and keep a record. At the same time, pay attention to two boundaries: first, it is not necessary to regard "the other party is in jail" as an automatic conclusion of emotional breakdown, but to prepare evidence around the fact that the relationship between husband and wife has indeed broken down; Second, if the other party's criminal act itself infringes on the family, it can claim corresponding compensation in the same case, but it should fall on the evidence and not be generalized. After the judgment takes effect, with respect to matters involving the transfer of property ownership and the payment of compensation, priority should be given to procedures that allow for direct enforcement, so as to prevent the obligations from remaining unfulfilled during the other party’s incarceration.

The fact that one party is serving a prison sentence does not constitute an obstacle to divorce, nor does it deprive the other party of the right to bring suit. The core path can be summarized in four sentences: Divorce by agreement is basically impassable, so litigation is taken; the court of the plaintiff's domicile or habitual residence does not need to go to the prison location; service, court session and default judgment all focus on "protecting the litigation rights of the party serving the sentence"; child raising, property division and possible damages should be solved together in one lawsuit as far as possible. The party serving the sentence is generally not suitable to raise the children directly, and the maintenance fee can be offset or delayed by the property; the common property is divided, but attention should be paid to the cross influence brought by the creditor's rights and debts, fines and confiscation of property; the right of visiting is not lost because of serving the sentence, but only to meet in prison or remote video meeting. If you sort out these points in advance, things will be much easier.