Attorney
Divorcing while incarcerated presents unique challenges. However, you can still dissolve a marriage in Florida even when one spouse is behind bars. Whether you are the incarcerated spouse seeking a divorce or the one filing from the outside, knowing your rights and the legal process can help you understand what to expect.
If you plan to file for divorce – especially if you or your spouse are incarcerated – working with a knowledgeable Florida divorce attorney can help protect your interests and speed the process along.
Florida’s No-Fault Divorce System
Florida is a no-fault divorce state. No-fault divorce means neither spouse must prove wrongdoing to end the marriage. In Florida, there are just two legal reasons for divorce:
- Irretrievable Breakdown of the Marriage – This is also called “irreconcilable differences.” It is the most common reason for divorce and does not require proof of spousal misconduct.
- Mental Incapacity – If a spouse has been legally declared mentally incapacitated for at least three years, divorce may be granted.
How to File for Divorce When a Spouse Is Incarcerated
The process of filing for divorce while one spouse is incarcerated follows the same general procedures as any other divorce case. Here’s what to expect:
- Filing the Petition – The spouse seeking divorce must file a Petition for Dissolution of Marriage in the proper Florida county.
- Residency – At least one spouse must live in Florida for six months before filing.
- Service – Next, the spouse must be officially served with divorce papers. You can do this through the county sheriff’s department, a private process server, or by mailing the documents with a waiver of service request.
- Response – The spouse who was served has 20 days to respond to the petition.
Legal Rights of Incarcerated Spouses
While incarceration can make divorce proceedings more challenging, the incarcerated spouse has the right to:
- Participate in hearings via phone or video conferencing
- Hire an attorney or request court-appointed counsel if eligible
- Contest certain aspects of the divorce, such as asset division or child custody
Even if you’re incarcerated, it’s important to respond to the petition within 20 days. If you don’t, the court may grant a default judgment. That means the divorce will proceed without your participation.
Child Custody and Support Considerations
Child custody, also known as time-sharing, is determined based on the child’s best interests. Since an incarcerated parent is unable to provide direct care while they’re in custody, the court often awards sole custody to the other parent.
Serving jail or prison time usually means the incarcerated parent will not have much, if any, income. In that case, the court may not award child support. However, the other spouse can petition to modify the support decree if the incarcerated spouse earns an income later. This is most common when the incarcerated parent is released and obtains employment.
Division of Marital Assets and Debts
Dividing property can also be complicated when one spouse is in custody. Florida uses an equitable distribution model. Your assets and debts will be divided fairly – but that doesn’t necessarily mean they’ll be divided equally.
Some of the most important factors the court considers include:
- Both spouses’ financial situation
- How long you were married
- Whether incarceration is due to criminal activity that also harmed the marriage, such as fraud
Finalizing the Divorce
If both spouses agree to the terms, the divorce may be finalized quickly. In contested cases, however, additional hearings may be required. This can extend the process. Courts have the discretion to enter a default judgment if the incarcerated spouse does not respond or participate.
Contact an Experienced Pensacola Divorce Attorney Today
Staples Law Group, P.A., offers family law assistance to clients throughout the Florida Panhandle. Founded in 1973, our firm offers comprehensive and compassionate divorce services, combining the personalized attention of a small law office with experience in handling large, complex cases. Whether you’re incarcerated or wish to divorce a spouse in custody, we’re ready to help. Contact us today for a consultation.