Posted by Nydia Streets of Streets Law in Florida Divorce

How does a divorce happen in Florida if one spouse is incarcerated? Being incarcerated does not stop a dissolution of marriage from proceeding in Florida so long as the imprisoned spouse is given the opportunity to participate in the case. In Weston v. Weston, 1D19-3727 (Fla. 1st DCA November 6, 2020) the issue of an incarcerated spouse’s opportunity to participate in the final hearing was at issue.

The former husband was serving a prison sentence at the time former wife sought a divorce. Notice of the final hearing was sent to the former husband and he requested to appear by telephone. The day before the hearing, he filed a notice of address change indicating he had been transferred to a new facility and that the court needed to provide notice to the Department of Corrections for any hearings so that he could participate. The hearing went forward without the former husband’s appearance or participation and in his absence, the court awarded to the former wife the marital home and other property she requested. The former husband appealed on the basis that he was not given a meaningful opportunity to participate in the proceedings.

The appellate court agreed with the former husband and reversed. It held “‘[A] prisoner must bring to the court's attention his desire to appear personally or telephonically at a hearing or trial.’ [internal citations omitted]. If the prisoner requests to be heard, ‘the right is clear.’ The appellant made clear his desire to appear at the final hearing telephonically. The Department requires institutional staff to initiate the phone call for an inmate to participate in court proceedings. See Havenner v. Hutchinson, 162 So. 3d 1113, 1114 (Fla. 1st DCA 2015) (citing Fla. Admin. Code R. 33-602.205(8)(b)). In Butler v. Norton, 158 So. 3d 750, 751 (Fla. 1st DCA 2015), a panel of this Court construed the directive in rule 33-602.205(8)(b) to require institutional staff to ‘first receive an order from the court requiring an inmate to appear for a hearing by telephone on a specific date and at a specific time.’ Butler found the court reversibly erred because its failure to issue the order to the Department precluded the inmate from participating in the hearing. Id. at 751. [internal citation omitted]. Here the trial court failed to issue an order to the Department requiring the appellant to appear, which, coupled with the confusion arising from the appellant's transfers, deprived the appellant of the right to appear at the final hearing. Based on the holding in Butler, we are constrained to find the trial court erred by holding the hearing in the appellant's absence.”

The right to participate in a Florida family law case is a foundational one. Schedule a consultation with a Miami divorce lawyer to go over your rights and to form a plan suited to the specific facts of your case.