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Can I Divorce Someone Who’s Incarcerated?


If your spouse is behind bars, you may be wondering whether now is a good time to file for divorce.  While that is a question only you can answer, from a legal standpoint, you absolutely do have the right and the ability to file for divorce right now.

How Do I Proceed? 

The process for divorcing an inmate is very much like the process for divorcing anyone else.  Certainly, there are some differences, but the process is not difficult. You need to be sure you have legal residence in Florida—meaning either you and/or your spouse have lived in the state for a minimum of six months.  Then you will have to serve your spouse with papers—most likely using the sheriff’s office.  You will have to provide an address for your spouse—which will likely be the prison or jail address.

Your spouse has 20 days to respond to the divorce petition after receiving it. Then comes the tough part in any divorce—the settlement negotiations. Hopefully you will be able to come to an agreement on property division and other issues.  If not, the case will go to court, where your spouse will be able to participate remotely.

What About Custody? 

The incarcerated parent is obviously unable to retain physical custody of the children, so it is likely that you will be given full physical custody, at least until the incarceration is over with.  In the meanwhile, it is possible your incarcerated spouse will still have to be consulted when it comes to major issues if legal custody is shared.  That means you’ll have to discuss matters like critical health issues and other items of significance relating to your children.

Possible Income Sources

It’s possible to be awarded child support when the divorce is finalized even if your ex is still incarcerated if they have the income and/or assets to pay.  How could someone who’s behind bars still have income?  There are plenty of possibilities:

  • Income from rental properties;
  • Money in bank or retirement accounts;
  • Money made from selling things like vehicles, real estate, etc.);
  • Investment income;
  • Income from the sale of stocks and/or bonds.

For those who do not have access to these kinds of resources, there is not a lot that can be done legally, although they will be responsible for back payments later on unless the support order is modified.

Do I Have to Allow visitation? 

In general, Florida courts encourage regular visitation. That being said, all decisions are made with the best interests of the kids in mind. If visitation might impact the children negatively, there is a chance the court might prohibit it, or at least suspend it temporarily. But visitation may be allowed, especially if another family member is available to facilitate it.  Every situation is different.  At the very least, the incarcerated parent may communicate with children by phone or through the mail.

Your Legal Advocate 

At WiseLieberman, our experienced Boca Raton divorce attorneys can answer your questions and do whatever it takes to make your divorce as smooth as possible, regardless of the circumstances.  Schedule a confidential consultation in our office today.

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