Divorcing Out of State Inmate
by Jessica from Miami, Florida, Miami-Dade County
How do I divorce from my husband when he is in jail for the next 7 years? I want to file for divorce and my husband is in jail in another state. How would I go about this?
Answer to Florida Divorce Question
My suggestion is to file a regular Petition for Dissolution of Marriage, Form 12.901(b)(3)
and have him served with it in prison.
You may need to call the correctional facility to find out their exact procedures to have him served.
He has 20 calendar days from the day he was served to file an answer.
If you are not asking for anything from him, property, child support, or anything else; there is little he can say in his answer that might prevent your divorce. In Florida, the phrase “the bonds of marriage are irretrievably broken” is the important phrase in dissolving a marriage.
Even if he answered and stated that the bonds of marriage are not broken, and he wants to live happily ever after with you, I seriously doubt a judge would be persuaded. If he does not answer, and throws the divorce petition in the trash, you can still get a divorce.
As long as he was successfully served, and he fails to answer within the 20 days, you can file a Motion for Default. That motion requests the court to grant you a divorce without him answering. Some may advise you to use constructive service instead of personal service to inform your husband of your intention to divorce.
Personal service is service of process by a sheriff or private process server. Constructive service is advertising your legal intent to divorce. In fact, the instructions for the Petition for Dissolution of Marriage state that you may be able to use constructive service if your spouse resides out of state.
Since he is in prison out of state, then obviously he does reside out of state. However, in order to use constructive service, you must go through a process called Diligent Search and Inquiry, where you must search for him. Since you already know exactly where he is, it seems disingenuous to me, to use that process.Notice:
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