By Gerri Elder
In the state of Utah, the filing fee for a divorce case is $155.
A man who is currently incarcerated in the Duchesne County Jail wants the filing fee for his divorce waived for him because he says he cannot afford to pay it; however, the law in Utah does not allow state judges to waive filing fees for indigent prisoners who wish to file for divorce.
The Deseret News reported that Jacob Kelsey has filed a lawsuit in federal court requesting that a federal judge declare the Utah law unconstitutional. Kelsey claims that in being denied a waiver of the divorce filing fee, his constitutional rights have been violated under both the United States Constitution and the Utah state Constitution.
The lawsuit alleges that the Utah law violates Kelsey's constitutional rights to due process, equal protection and the right to petition the government for redress of grievances.
Under Utah state law, the state courts are required to look into the finances of inmates wishing to file for divorce, but who say they cannot afford to pay the full costs. If a prisoner is not able to pay the full divorce filing fee and costs immediately, the court is directed to assess an initial partial filing fee that is equal to 50 percent of the inmate's current trust account balance or 10 percent of the prisoner's six-month disposable income, whichever is greater.
After the initial partial filing fee is paid, the court must order the inmate to make monthly payments equal to 20 percent of the previous month's disposable income in order to satisfy the balance. The law does not provide for a waiver or reduction of the divorce filing fee.
Kelsey's lawyer, Brian Barnard, says that his client earns approximately 30 cents per hour doing menial jobs in jail.
In his lawsuit, Kelsey has named Utah Governor Jon Huntsman, Utah Attorney General Mark Shurtleff and two state judges. Barnard knows that under Utah law judges cannot waive divorce filing fees for inmates, and the governor and attorney general are not directly involved in divorce cases. However, Barnard said that these defendants were named to make sure the proper parties are before the court.
According to Barnard, case law from the U.S. Supreme Court has held that getting a divorce is a fundamental right and that the divorce filing fee must be waived. He says that it is not uncommon in other states for the filing fee to be waived for prisoners.
Kelsey is not seeking any financial damages in his lawsuit. Barnard says that he only wants the law declared unconstitutional so that he can get a divorce and move forward with his life.