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Divorce & Incarceration


A married couple or domestic partners have decided they want a divorce.  The plaintiff attempts  to file a complaint but realizes her ex was arrested. Not only was he arrested, he can’t post bail and will be remanded for months. What does this mean for the Plaintiff’s custody or divorce case? Can she proceed with filing if the other party is incarcerated? If this scenario is all too familiar or  you know someone facing a similar problem, contact our Tampa divorce attorneys at Bubley & Bubley, P.A.

Contested Custody

If your spouse or partner was arrested for a domestic violence or child abuse charge, and you or your children are the victims, you can file an emergency restraining order against your ex (the respondent). The restraining order will grant you exclusive access to the family home, vehicle, monetary assets and also order the respondent to pay utilities, mortgage and upkeep, remain away from you and your children, and surrender all firearms. The court can also ask the respondent to attend counseling or other rehabilitative treatment.

The repercussions of a criminal domestic abuse case on an ongoing custody dispute can be dire for the defendant. The court will examine the defendant’s criminal history, culpability, and likelihood to commit an offense against you or your children. Most importantly, the family court judge will make his or her determination based on what is in the best interest of the child. If the child is in danger, is emotionally, physically or mentally abused or is otherwise unsafe with the defendant due to a history of violence, drug abuse or other incapacity, the court may award the plaintiff with primary legal and physical custody. In that case, the court would most likely grant supervised visitation to  the defendant if he or she is no longer incarcerated and doesn’t present a danger to the kids.

If Still Incarcerated

If incarcerated, the defendant still has the right to speak at a court hearing for custody or divorce issues. They would need to arrange for a video or teleconference with his detention or prison board so that they could attend the hearing. They are not entitled to a lawyer for a family law issue, but are entitled to representation for criminal defense matters. In addition, if the parties are already divorced and the plaintiff learns the defendant has been arrested, the plaintiff can file a motion for an emergency hearing to modify custody if the parties previously shared joint custody or an overnight custody arrangement. If this applies to you, it is crucial you act urgently to protect your child’s safety and interests.

Let Us Help You Today

If you or someone you know is considering divorce, but your ex has a criminal record, or you recently learned they were arrested, you may be wondering what your options are. Because advice will be narrowly tailored to your unique circumstances, it’s critical you speak to a seasoned  family law attorney as soon as possible. Our lawyers at Bubley & Bubley, P.A. possess decades of combined experience handling estate and family law matters. We are a small, local law firm practicing in Tampa with a focus on providing our clients with personalized and driven results. Contact our office today to schedule a consultation.






Location & Directions

Bubley & Bubley, P.A. is located in Tampa, FL and serves clients in and around Brandon, Odessa, Tampa, Oldsmar, Land O Lakes, Thonotosassa, Valrico, Wesley Chapel, Lutz, St Petersburg, Plant City & Brooksville, Safety Harbor, Holiday, Trilby, Crystal Beach, Ozona, Apollo Beach, New Port Richey, Clearwater, Tarpon Springs, Port Richey, San Antonio, Spring Hill, Lithia, Pasco County and Pinellas County.

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