How to File for Divorce When One of the Spouses Is in a Florida State Prison?

If your spouse is incarcerated in the state of Florida and you are considering a divorce, it may help to know that the laws that apply to your situation are the same as those of any other Florida resident, with certain requirements in regard to time of residence.

Instructions

1. Determine whether you qualify to file. If you or your spouse has lived in Florida for the past six continuous months, you can file for divorce in the state. Thus you would still qualify to file for divorce in Florida even if you no longer live there, as long your spouse has been a resident for the past six continuous months. You must also be able to substantiate either that the marriage is "irretrievably broken" or that your spouse is judged by the state to be mentally incapacitated for at least the past three years. Your spouse's incarceration status cannot be used as a substitute for a judgment of mental incapacitation.

2. Decide whether to file a regular petition or a simplified dissolution of marriage. You may be eligible to file for the latter if you and your spouse have already agreed on how to divide your assets and liabilities, if you are both willing to surrender your right of appeal and if you have no minor or dependent children together. Because both spouses are technically required to attend the hearing in the case of a simplified dissolution, the incarcerated spouse would need to come to an agreement with the court to participate by phone, in writing or through a lawyer.

3. File in any county of the state. In the state of Florida you do not need to be a resident of the county in order to file for divorce there. Once you have filed, your spouse will be served notice and have the opportunity to respond.

4. Negotiate pre-hearing arrangements. These include discussing relevant financial information and making a good faith attempt to negotiate custody arrangements for any children. In the case of children, the court will also likely require you and your spouse to attend mediation and parenting classes. Incarceration is not considered sufficient grounds for terminating custody rights.

5. Attend the hearing. The court will review the paperwork and ask whether you intend to proceed with your petition. If your spouse contests the petition, the court may order a delay of up to three months to give you and your spouse time to reconcile.

References

• Lawyers.com: Divorce in Florida
• Divorcesource.com: Florida -- State Divorce Laws
• Florida Family Law Rules of Procedure: Form 12.901(a) Petition for Simplified Dissolution of Marriage
• Escambia County Clerk of the Circuit Court: Court Services -- Dissolution of Marriage
• Jacksonville Divorce Lawyer Blog: In Florida, Can You Successfully Terminate Parental Rights because the Father Is Incarcerated?