By Divorce.com staff
Updated Dec 26, 2022
Two things about 40% of married Americans do are file for divorce and move away from their spouse. Matters can get complicated when you want to do both at the same time – especially if there are children involved or if you're moving out of state before, during, or after divorce.
The laws for moving during and after divorce vary by state, but they are similar enough to paint a broad picture. If you want to make a change that will affect your pending court case or seriously change your children's living situation, it's a good idea to consult an experienced family lawyer to discuss your specific circumstances.
One issue common to all the scenarios we’re going to discuss in this article is the marital home (if you rent your home, you can skip this part). If you own your marital home jointly, here are some questions to ask yourself before deciding to move out of state before, during, or after divorce:
Will your ex-spouse be willing to sell the house and split the proceeds equitably before you move?
Note: this is by far the best, simplest, and cleanest option.
Will you continue making your share of mortgage payments and necessary home repairs after your move?
Can you afford to keep paying your share of the mortgage without maxing out your credit cards or dipping into your retirement accounts to cover your living expenses in the new state?
If your ex-spouse wants to keep the house, can they afford to buy you out of your share of the current home equity?
Note: if your ex can’t afford it without trading away their share of the joint bank/stock accounts as well as your retirement accounts, for example, this is likely a very bad decision. When they inevitably run out of money, they can’t sell a window to put food on the table. They may have to sell at fire-sale prices and lose the equity they once had in the home.
- Are you “underwater” on your mortgage (meaning you owe more than the home is now worth)?
- If so, is it worth sticking it out for another year and hoping the housing market in your area recovers?
- Or should you walk away and take the hit – which could mean declaring bankruptcy if your home goes into foreclosure?
A Brief Introduction to Property Division During Divorce
There are two types of property in a divorce: Marital/Community or Separate/Non-Marital. Generally speaking, all marital property – like your marital home – will go into the marital “pie” that’s going to be divided, and all separate property goes to the spouse who owns it.
The distinction between the two is a gray area and should be discussed with your divorce lawyer, but here’s how most courts typically define separate property. Separate property is anything that was gifted during the marriage, inherited during the marriage, or brought into the marriage and kept in one spouse’s separate name.
You can, however, transform separate property into marital property by “commingling” it. Here’s an example: you withdraw some or all of that inheritance money and deposit it into a joint account, or you use it to renovate the kitchen in your marital home, or to buy a camper van for family vacations, or to take your spouse on a dream Safari to Africa, etc.
There are also exceptions for “dissipation of marital funds,” where one spouse spends marital funds on non-marital activities, such as for an affair.
Everything that’s not characterized as or transformed into separate property will be considered marital – no matter whose name it’s in.
Now that we‘ve gotten that out of the way, let’s consider a move when there are no children involved.
Moving Out of State Without Children: Before, During and After a Divorce
Moving out of state if you don’t have children is common during a divorce, and if the place you're going is still within the county court's jurisdiction, you should be fine.
A minor relocation doesn't significantly change the facts of your case, though it is important to update the address that both your divorce lawyer and the court have for you so you don't miss any document service or court mailings.
Moving farther away than a few freeway exits to be closer to extended family, however, can complicate your situation. If your divorce was filed in County A, for instance, and you've just moved across the state to County X, you shouldn't expect to have the case move with you, even if you're the one who filed it.
Rather, your current location has the first right (and obligation) to the case, according to law.
And if you hope to move to another state entirely, there are two things you must consider first:
- Are you hoping to file for divorce soon? There are residency requirements you must fulfill before you can file for divorce in a new state, so if you were hoping to file soon, leaving your home state may not be a good idea.
- Have you researched divorce laws and guidelines in the new state? Since grounds for divorce, property division, and spousal support rules vary from state to state, do your research – which might include having an initial consultation with divorce lawyers in your current and the new state – to discover which one is the most favorable to your unique situation and goals for your post-divorce future.
Additionally, if your spouse still lives in the original location, they have a right not to be dragged to the venue of your choosing – especially if it is an airplane trip rather than a car ride away – just because you moved.
If it is at all possible to delay such a move until the divorce is final, you might save a lot of difficulty and gas money/airline tickets. Otherwise, expect to commute back to your old town for every court date – unless your ex-spouse agrees to relocate the case, which is pretty unlikely.
Is Moving Out of State Before Filing for a Divorce a Good Idea?
The short answer is “Maybe.” Before deciding whether to move out of state before filing for a divorce with no minor children, ask yourself these five questions:
- Does your spouse know that you plan to divorce them, or is this going to come as a big surprise? If they’re going to come home to find you’ve moved out, taken all the furniture with you, and emptied the joint bank accounts, you could be in for years of litigation unless you have a really compelling reason (e.g., fleeing domestic violence) to do so.
- Are both of you moving to the same state and planning to file there (Note: there are residency requirements you must fulfill before you can file for divorce in a new state, so if you were hoping to file soon, leaving your home state may not be a good idea)?
- Since grounds for divorce, spousal support, and property division rules vary from state to state, have you done your research – or spoken to divorce lawyers in your current and the new state – to discover which one is the most favorable to your situation and goals?
- Are you self-supporting? If not, you should file for divorce before moving; after filing, you can ask the court for temporary court orders for spousal support (a.k.a. “alimony”).
- Are you the primary or sole wage earner? If so, you will need to resolve any temporary spousal support or asset division issues before moving – although you will still need to reach a final agreement on property and support issues before your divorce.
Moving before you have even filed for divorce could make your financial situation complicated. In most divorce cases, the marital home is one of the two biggest assets – the other being pensions/retirement plans (in the case of long-term marriages).
If the home was purchased while a couple was married, then it’s almost certainly part of the marital estate to be divided equitably between the spouses. Moving out before the divorce is settled could cause issues with this.
Some states can institute a “status quo order” if the primary earner of the household tries to move out before the divorce is finalized. What this means is that the person who wants to move out might be required to still pay bills towards the home, leading them to pay two sets of bills with the same income.
This can be a huge financial burden without even considering the legal fees that add up from filing for a divorce.
Is Moving Out of State During a Divorce a Good Idea?
Once again, the short answer is “Maybe.” Moving out of state during divorce may not be such a wise – or even lawful – decision, depending on your circumstances.
In this scenario, you have told your spouse that you want a divorce – although you may or may not have filed yet. If you decide to file in your current state and then move before your divorce is final, be aware that you may have to travel back to your original state for hearings if the court is no longer accepting virtual appearances.
Again, there are residency requirements you must fulfill before filing for divorce in the new state; are you and your spouse happy to wait to file there? Is your spouse ready and willing to travel for hearings if need be?
If your spouse is not on the same page, there is nothing stopping them from filing for divorce in their current state while you’re waiting to file in the new state.
Let’s look at some key considerations for a couple with no minor children. Before deciding whether to move out of state before filing for a divorce, ask yourself the following questions:
- Does your spouse know that you plan to move out of state – and if you haven’t already filed for divorce, have you agreed where you’re going to file?
- Have you done your research – which might include seeking advice from divorce lawyers in your current and the proposed new state – to discover which one is most favorable to you in terms of property division and spousal support?
- Have you and your spouse decided how to divide your assets and debts? Unless there’s very little to divide, you should definitely seek advice from a family lawyer (and a divorce financial expert as well if your financial situation is complicated) before moving out of state during divorce. You don’t want to get stuck with a massive tax bill, for instance, while your ex gets to keep their assets free and clear.
- Are you self-supporting? If not, file for divorce before moving so that you can ask the court for Temporary Orders for spousal support (a.k.a. “alimony”).
There is no law that says you can’t move out during your divorce. In fact, you don’t even have to tell your ex-spouse about your plans to move.
However, it might be wise to seek legal counsel before making a drastic decision such as moving out. A lawyer can help walk you through any financial implications this could have on your divorce or even discuss things like who gets the home between you and your soon-to-be ex-spouse.
If it’s an emotional separation or your partner has been known to exhibit behaviors of violence, it might be wise to move out when you can and when your partner is not home – or request a police escort to help you leave.
Is Moving Out of State After a Divorce a Good Idea?
If you have no children, or you don’t still co-own and run a business with your ex-spouse (it happens, although it can be challenging), then you’re free to go.
After your divorce has been filed and processed, you may think the hard part is finally over. But divorces are complicated. Sometimes moving out of the home after a divorce is not always as black and white as you may think it to be.
Complications such as deciding who moves out, who stays, whether you’re selling the house before you move and dividing the equity equally, where you wish to move, and other decisions can have legal consequences if not handled correctly.
Before you move out – or even make the decision to move out – after your divorce here are a few things you should consider:
- Speak with your attorney: It may be wise to speak with your attorney about what to do with the current property you and your ex-spouse own.
- Budget: Make a list of things you’ll need if you plan to move and their costs – also ensure you have the financial means to buy or rent a new home where you want to live.
- Plan: Make a plan of where you want to live and what you’d like to surround yourself with. You can make a big move simply by planning little things that will help you go in the right direction.
- Divide your property: Choose the things you’d like to take to your new home with your ex-spouse and see if you both can come to a compromise. It might help to explain why you’d like to take a certain item out of your joint home for yourself.
- Support System: Moving on your own can be tough, but having a strong support system to help you get through it always helps. Call upon friends or family that know about your situation for support during the move if needed.
Moving Out of State With Children: Before, During and After a Divorce
At the very least, moving a significant distance away – even just to a different school district in another part of town – is an upheaval that courts try to avoid for the good of the children. Changing counties or moving out of state after divorce – especially over the objections of your co-parent – will almost certainly require a court order.
This is because any legal custody agreement or visitation order is an official command from the court, detailing places and times when the other parent has a legal right to see the children. Moving far away is sure to impair that schedule, so the order must be modified before you can do it.
A distinction has to be drawn here between five types of custody:
- "Sole Legal Custody" – one parent makes all essential decisions about the child (e.g., where they go to school, how they get health care, etc.).
- "Sole Physical Custody" – the child lives solely/predominantly with one parent, and the other parent usually has the right to spend a set amount of time with their child.
- "Joint Legal Custody" – both parents share decision-making authority.
- "Joint Physical Custody" – the child lives in turn with both parents, moving from one home to the other.
- “Split Custody” – one child lives with one parent, and the other child lives with the other parent.
In many states, the terms “custody” and “visitation” have been replaced with terms such as “parental responsibility,” “parental responsibility and decision-making,” and "parenting time."
The newer terminology is meant to promote the importance of having both parents in the children’s lives as well as to eliminate the idea that one parent “visits” their children after divorce.
Both parents parent their children – regardless of how much or how little time they spend together or where they live. The new terms also focus more on the best interests of the children by allowing the co-parents – or the court, if they don’t agree – to design parenting plans that will meet and change with the developmental needs of the children.
All of the important decisions are in the hands of the parent with sole parental responsibility (sole custody) and, depending on the parenting time (visitation) rights of the other parent, the primary parent may be able to petition the court for a "move-away order."
A move-away order acts as permission to move someplace far enough away that the noncustodial parent will have to sacrifice most of their parenting time with the children.
This is most often done with a motion filed with the court and served on the other parent to give them a chance to object. If they do, you might be arguing your case in family court, just as you would if the two of you shared legal custody.
Shared parental responsibility and decision-making puts the authority over the children into both parents' hands. Important decisions affecting the children must be made together, with an agreed-upon objective third-party (e.g., a parenting co-ordinator) having tie-breaking authority.
Given the family court judge's traditional reluctance to override the strenuous objections of an actively engaged parent, forcing an unwelcome change on either parent can be difficult from a legal standpoint.
In this situation, the final decision will almost certainly come down to the perceived best interests of the children.
Regardless of whether your parental responsibility and decision-making order reads "joint" or "sole", expect the court to start from whatever the current parenting time schedule is, and then work out the children's interests from that, always with an eye toward the least-disruptive solution possible.
Is Moving Out of State With Children Before Filing for a Divorce a Good Idea?
If you have minor children, the answer is a complicated “Maybe.” To move out of state with your children before divorce, you must either have your spouse’s consent or the court’s permission. Here are four questions to consider regarding moving with your children:
- Have you spoken to a family lawyer about the potential move?
- Is it in your children’s best interests to move to another state? What are your reasons for the move?
- If you and/or your children are victims of domestic violence, have you gone to court to request a Temporary Restraining Order (TRO) or Emergency Order of Protection (EPO) against your spouse?
- Again, are you self-supporting? If not, you should file for divorce before moving; after filing, you can ask the court for Temporary Orders for child custody and child support.
Moving out of state with minor children is often referred to as a “Move-Away” custody case. These requests are some of the most difficult and emotional disputes that parents, children, family lawyers, and even judges face in the family law arena.
The court may impose a temporary order prohibiting a parent from moving out of state if a child is involved. A judge may prohibit the move until both parents make an agreement or if the judge makes an order concerning child custody.
When a minor is involved in these proceedings, depending on the circumstances, it may not be a good idea to move with the child. Moving before the divorce is even final could have serious consequences on child custody arrangements, or even impact the child in a negative way.
Often, it’s important to speak with a legal advisor about what to do if you’d like to move out of state with the children before the divorce is even finalized. Different states have different rules regarding child custody, so it is imperative to look into your state's regulations before making a big decision like a move.
Is Moving Out of State With Children During Divorce a Good Idea?
Every state has its own factors for determining a move-away custody dispute. However, the rules are generally less important than the unique circumstances of your case.
When you take a move-away case to court, the judge must decide:
- whether the move is in your children’s best interests,
- what custody arrangement would be in the best interest of the children if /when you move.
Generally speaking, to lawfully move to another state with children during divorce, you must either have the court’s permission or your ex-spouse’s permission to do so. Except in cases involving domestic violence, if you have or are seeking sole custody (now known as “parenting time” in many states), you must give your ex-spouse notice that you intend to move.
The notice period varies from state to state, but 90 days is typical. In some states, you must even give notice if you wish to move to a new neighborhood in the same city.
If your ex-spouse objects to the move, you will have to convince a judge that:
- you have a good-faith reason for the move (e.g., for a better job, to be closer to family who can help with daycare while you work, etc.), and – most importantly –
- the move is in the best interests of your children.
If you can’t prove your best interests, your case is dead in the water.
If a parent who wishes to leave the state with children during a divorce can convince the judge that moving is in the best interest of the kid, then this might allow for a parent to move.
Usually, without a court order accepting the move, the other parent will need to give their permission for the relocation of the child.
The court will review all circumstances regarding the parents and their ability to take care of the children while going through a divorce and a potential move-away situation. Every case is different.
A judge might grant permission for one parent to move during divorce and deny permission to another. When it comes to moving with children, your unique circumstances play a key role in the judge’s ruling.
Ultimately, the court decides what’s in the best interest of the child before granting a parent permission to move out of state with them.
Is Moving Out of State With Children After a Divorce a Good Idea?
Before you move – even if you have sole custody of the children – you still will need to convince a judge that:
- You have a good-faith reason for the move.
- The move is in your children’s best interests.
Moving out of state after a divorce with a child really depends on each parent's custodial rights. Whichever parent wants to make the move may still need to get permission from a judge and the other parent before moving.
Even if both parents agree about the move, they still need to get the judge to approve their new agreement and make it part of the new order.
If one parent wants to move with the child, the other parent might request a custodial change such as seeking primary custody or asking to change the visitation schedule. If one parent wants to move with their child to a completely different state, then this will impact the already arranged custody agreement.
Many states have laws requiring parents to provide advance notice and seek permission from a judge or the other parent before moving with the child. While some of these laws only apply to moves out of state, there are others that apply to moves within the state as well – stipulating how far away you can move from your co-parent.
Look up your state's regulations before deciding to move with your child. Again, the decision to relocate boils down to your circumstances and whether a judge thinks it’s in the best interest of the child to move.
How to Get Permission to Move Out of State With a Child
To move your child out of state without your ex-spouse’s permission, you’ll have to evaluate your current custody agreement and seek the court's permission to leave the state with your child.
In most states, judges give custodial rights either to both parents (joint custody) or to one parent (sole custody). Before thinking about moving out of state with a child, you need to establish which parent is the primary custodian.
If you’re a non-custodial parent who really wants to move out of state, then you’ll have to ask the court to reevaluate your custody agreement. This is known as a custody modification, and it’s up to you to bear the burden of proof that moving is in the best interest of your child.
It would be wise for non-custodial parents to discuss how they can go about this with their attorney for the best results possible.
If you and your partner share joint custody of your children, then you will need to ask the courts for a “move-away” order. Even if you and your ex-spouse have joint custody and a good relationship, the courts still need to rule on whether relocation is in the best interest of the child.
The Last Word: Should You Move Out of State Before, During, or After Divorce?
It’s always tempting to start fresh and move when you’re going through a divorce. Often, people think moving is black and white, and don’t fully grasp the consequences moving amid a divorce can have, especially if you and your soon-to-be ex-spouse have a child or children together.
It’s important to speak with your family law attorney – and possibly a divorce financial analyst if you’re worried about your future financial situation – before uprooting your life before, during, or after a divorce. They can go over how moving could impact your divorce, finances, and child custody arrangements (if that applies to you).
Above all else, moving to another state – with or without kids – is a big decision that needs to be made wisely. We hope this article helps you to make an informed decision about when – or whether – to move out of state.