Divorce Attorney Scott J. Stadler

    • 09 MAR 20
    Can I File for Divorce if My Spouse is Incarcerated?

    Can I File for Divorce if My Spouse is Incarcerated?

    Let’s face it — hardly anyone wants to marry someone with a criminal record. What happens if your spouse is arrested, charged with a crime, and put in jail for several years or longer during the course of your marriage? Would this be a dealbreaker?

    It may be, depending on why your spouse is in prison. Was she selling drugs? Did he kill someone? Was your husband abusing you or the kids? Did your wife embezzle millions of dollars from her employer?

    There are many reasons why someone may be put in jail, but one thing is for certain: Incarceration can put a strain on a marriage. Being married to a spouse who is in jail is like being a widow or widower. Many people stick by their spouses, through the good times and bad, but it is a huge adjustment. It is very lonely. The spouses live separate lives. Any contact is monitored. Physical contact is rare.

    Florida has one of the largest prison populations in the country. More than 100,000 residents are in state prison. Thousands more are housed in jails throughout the state. The average time incarcerated is five years. This is a long time to be separated from a spouse. While the saying goes that absence makes the heart grow fonder, this amount of time apart often does irreparable damage to a marriage.

    Many people use their faith to guide them through their wedding vows of ‘for better or for worse.’ However, incarceration can no doubt change the structure of a family, and it is likely the ultimate test of commitment for a relationship. One person has structure behind bars, while the other must take on the role of single parent, if children are involved. This can be a confusing time for kids who no longer see Mom or Dad on a regular basis. As a result, the strain becomes too much and the inevitable happens: the marriage falls apart.

    The question becomes: Can you legally divorce your spouse if he or she is incarcerated? If so, what is the process?

    In Florida, you are allowed to divorce your spouse if the marriage has broken down and there is no chance of reconciliation. However, since the circumstances are different, some laws need to be waived. Your lawyer can help you with the process, but there are some things you should be aware of before you begin.

    Working With the Court

    To file for divorce, you will need an address for your spouse. Since your spouse is not living with you at the moment, you can use the address of the prison where your husband or wife is incarcerated. This address is used to serve your spouse the divorce papers. Once he or she receives the paperwork, your spouse has 20 days to file a response. He or she can do this from jail or get help from a lawyer.

    Things get trickier from there if you have children. Florida law requires the parents to agree to a parenting plan through parenting classes and sometimes mediation. This typically has to be done in person. However, this would be impossible for an inmate, so the court will usually allow for online classes and even waive the requirement altogether. However, the spouse must file a motion to allow for this exemption.

    For obvious reasons, issues such as child support and custody are also handled differently when one spouse is in prison. When one parent is in prison, he or she will be unable to obtain custody of the children. This means that the other parent will have custody—at least temporarily. Just because your spouse is incarcerated does not mean he or she will automatically lose parental rights. The incarcerated parent has the right to seek custody after being released from prison. However, whether or not the court will grant that parent custody will depend on various factors, such as why he or she is in prison and the ages of the children.

    If you decide to divorce, keep in mind that that you will not be able to receive child support. This is because your spouse is in prison and not earning any income. However, as part of the divorce, you may be awarded more assets or money in order to make up for this. Once your spouse is released from prison, he or she will likely be ordered to pay you child support on a regular basis.

    If your spouse does not respond to the divorce petition, you can wait 25 days and file for a default divorce. Once the court has approved the request, you can schedule a hearing and finalize your divorce. If your spouse contests the divorce, you two will have to work together to negotiate a marital settlement agreement. Your spouse may be able to participate in court hearings via telephone. To do so, he or she must file a motion with the court.

    Seek Legal Help

    You may not want to stay married to someone who is in jail or prison for a crime, and that is understandable. Many marriages do not survive incarceration. Having a spouse in jail puts a huge strain on a marriage and makes life much more difficult for the spouse not in prison.

    You can file for divorce if your spouse is in prison, but there are some special circumstances that apply. Palm Beach divorce attorney Scott J. Stadler can help you file for divorce with ease so you can move on. Schedule a consultation today. Call our office at (954) 346-6464.