Moving Out of State Before, During, or After Divorce

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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:

1. 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.
2. 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?
3. 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.
4. 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.

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