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

Dear Jessica,

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: We provide these answers to the general public and our website visitors as a means to further their online legal research. These answers are merely suggestions and should not be regarded as legal advice.

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Which Form To Divorce A Federal Prisoner?
by: Valerie from Sarasota

After four years of marriage, I discovered that I had married a recidivist criminal and sophisticated con man when our home was raided last June by the FBI, IRS and DOJ. My husband was arrested for white collar crime, pleaded guilty three months later, and was sentenced to almost 20 years in a federal prison in December.

Since last June, I have been trying to clean-up his messes, which include many foreclosures and financial judgements. There are no marital assets (jewelry and vehicles were seized by the DOJ after his arrest), but there are many liabilities in his name alone. Unfortunately, we used my formerly sterling credit rating to purchase the most valuable property before we were married. Since my husband will probably be in prison for the rest of his natural life (he is 61 years of age), do I need to file the Dissolution of Marriage form that includes all of the financial liabilities?

As stated previously, several properties are in his name alone, but a $2.2 million foreclosure and a $375,000 second-mortgage liability are in my name. Those liabilities pertain to a beachfront home we purchased, tore down, and were rebuilding until it went into foreclosure mid-way through construction. (The builder has a $109,000 judgement against both of us for "unrealized profit" on that project.)

Within the next few weeks, my husband will be transferred to an out-of-state federal prison, so I want to ensure that divorce papers can be served on him before he is transferred out of Florida. Obviously, I have been financially devastated and I have no income, so I need to file/handle this divorce myself. Any advice would be greatly appreciated. Thank you!

P.S. I should note that I owned a condo before I married this man and it is the only property left and the only property with any equity at all. It has been homesteaded in my name alone for many years, as my husband never filed the paperwork to homestead his own property and I was waiting for that to happen before dropping the homestead exemption on my condo.

--Wow. A most unfortunate situation. To answer your main question, filing a regular dissolution of marriage petition will get you a divorce and you can have him served with the divorce papers no matter where he ends up. As far as the implications for liability of the debts that you mention, I don't know. My best suggestion is for you to talk to an attorney who is versed in both family law and bankruptcy. --Staff

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