How to divorce a criminal

Relevant case law on getting a divorce when your spouse is in prison: Matter of Conlon v. Murphy 24 AD 2d 737; Price v. Johnston 334 U.S. 266; State ex Rel Gladden v. Sloper 209 Ore. 346…….

So how does one divorce a criminal? Well, look. Here’s my big question: How did you end up being married to a criminal? Did you think you were going to be glamor pusses like Bonnie and Clyde? You were wrong, weren’t you?

I like bad boys just like the next gal but would I necessarily marry one? Who knows. In my past life I probably was Bonnie to a very debonair Clyde. But in this life, I think, I hope, I know better. What I do know for sure is that Johnny Depp is rather dapper in his new movie Public Enemies isn’t he? He has gravitas, for a young criminal/bank robber, anyways, and notwithstanding what the critics said, I really enjoyed that movie. I was sorry to see him gunned down the way he gunned down so many in his short life on the lam. But I guess what they say about living by the sword and dying by the sword is basically true…

Got me to thinking about those folks who are married to and wish to divorce a “criminal” spouse. I am not going to sit here and pass any judgments about getting yourself into a fix like that. As I said, even strait laced I am susceptible to the bad boy charms of certain men. I am sure, for example, when Ruth Madoff married Bernie Madoff 50 years ago, in all her jejune, post-adolescent naivete, she had no idea that she would go down in history as having married one of the biggest white collar criminals of all time. In her case if she wants to divorce him, she has to wait 3 years and move on the basis of imprisonment.

What if your criminal spouse is already imprisonned? In New York, if 3 years have passed you can serve him or her with the summons and complaint and, as I said, your “grounds” would be on the basis of imprisonment….what if he’s a mobster? I don’t know. I don’t want to talk about it. I don’t know anything about mobsters and how to divorce them.

For other regular types of criminals, in New York, if 3 years have not passed, you are out of luck unless you can use another ground such as….separation. If your spouse is willing to sign a separation agreement, then you wait a year and convert the separation to a divorce in one year. If he or she is not willing to sign a separation agreement and you live in a fault state such as New York, you are out of luck. You could try an annulment instead of a divorce. But those are hard to prove without corroboration.

Plus, the fact that your spouse is in prison can complicate things as far as him or her making a personal appearance. For example, I remember having a client whose spouse was in federal prison and for the longest time him and his lawyer used the fact that he couldn’t make a personal appearance as an excuse for delaying the trial (spouse was contesting the annulment). Make a long story short, I had to do extensive research, including Supreme Court precedence to show that an imprisoned spouse does not have an absolute right to make a personal appearance in a divorce or any other civil action. The cases that say so are: Pope v. Pope 198 AD 2d 406 and also, check out Bagley v. Bagley 57 Misc. in addition to those cited above and a few others.

If your spouse is not in prison yet, but just wrecking havoc around the neighborhood, bringing home contraband; shooting folks; doing runs for the mob; Driving under the influence and then hitting and running and leaving fatalities; running ponzi schemes; holding up banks, or god knows what other “exciting” stuff’s going down in your reality? Girrrrlll, you’ve got a problem. A big one. How do you divorce a guy like that and emerge with your life? This really is not my area of expertise to tell you the truth. What I would do is I would probably get into a witness protection program first. Then I would file for divorce. Especially if he’s in the mob. The mob don’t play. They will really get you–sometimes even in the witness protection programs. But obviously, you can’t stay married to a criminal. You have to get out. I would say that you leave in the most unobtrusive way when he least suspects it. You get into some kind of protective custody with law enforcement. Then you file. What do you think? Think that will work?

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