Making a Murderer: The Family Law Spin Part 1

Making a Murderer: The Family Law Spin Part 1

Posted By Megan McClinton, Marietta Family Law Attorney || 21-Jan-2016

So, by now, unless you’ve been living under a rock or in a cave on a remote island, you’ve heard of the NetFlix documentary “Making a Murderer”. The docu-series follows the tribulations and trial of Steve Avery, who was wrongfully convicted in 1985 for rape and assault, exonerated after 18 years in prison in 2003, and then arrested for murder two short years after his release.

I binged the series over the course of a weekend during the holidays and I’m still talking to whoever will listen about it.

During the course of the documentary, we learn that while Steve Avery was sitting in prison for 18 years for a crime he didn’t commit, he had a wife, with whom he also had four children. At the time of his conviction for this crime he was sentenced to something like 36 years in prison, and his wife just couldn’t emotionally deal with that situation. We learn in the series that the stress of raising four small children on her own, and trying to maintain any bond with Steven while he sat in prison (in fact, several different prisons – he was housed in facilities all over Wisconsin and even a few states south) was just too much.

She filed for, and received, a divorce.

After thinking about this series for a couple of weeks and talking endlessly about it (mostly me telling anyone who will listen “You absolutely HAVE TO WATCH this series!”), my family law brain started wondering what the process for a prison divorce would be. Surely not that much different? Or is it?

The actual writing of the divorce complaint wouldn’t be any different than any other divorce. If a client asked me to handle her divorce from her husband, who was in prison, we’d have no problem getting things going but two big questions then arise: what county do I file it in, and how the heck do I get this guy in prison served?!

Establishing and filing in the correct venue is fundamental to the practice of law. Usually, we file in the county where the Defendant lives. However, Georgia has a special rule regarding venue for inmates, and that is to file in the county the Defendant lived in immediately prior to his incarceration. After getting that done, we’d then have to have him served in prison.

Ideally, the Defendant would acknowledge receipt of the divorce complaint. This would cut out the need for having his formally served. We’d mail him the documents, and he would sign and mail us back the acknowledgement of service. But what if he bucks? What if he doesn’t want a divorce?

Look soon for Part 2 on how we’d get the inmate served and get our client divorced.

Megan McClinton

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