Can I move out of state while my divorce is processing?

Posted on Oct 26, 2022 by Katie Carter

Can I move out of state while my divorce is processing?

We get lots of questions about moving, before, during, and after the divorce – and that makes sense, because it’s such a period of crazy transformation and change. It’s normal to make a series of big changes, from moving out of the marital residence, to changing jobs, and even considering (or undertaking) a move to another state.

All sorts of things happen during the divorce process, but you’re a step ahead because you’re already thinking about these things and wondering how they’ll impact your case. (Some people will just do things, and then ask questions later – which, in a legal context, can be a risky way to act.)

It’s smart to ask, and then base your decisions off of the information that you get. Moving can be a big deal! Let’s talk through some of the considerations.

When you have minor children

Moving is a much bigger deal if you have minor children. In fact, if you already have a custody agreement or order in place, you may not be able to move at all. (Well, technically, YOU could, but that doesn’t mean that you can take the children with you.)

You can’t move somewhere that would mean that you can’t exercise custody and visitation according to your agreement or court order.

And, even if you don’t have an agreement or order in place, you’re probably still in a tricky spot. You could petition the court to see whether it will allow you to relocate with the children, but they’re notoriously difficult cases to win. You could go, and ask for forgiveness rather than permission, but that’s risky, too. Worst case scenario, your husband could file an emergency petition with the court, and the judge could order that you return the children to the Commonwealth, without regard for where you’ll live, what happens to your job, how you’ll cover moving expenses, etc.

Of course, there’s also a best case scenario – where he doesn’t do anything, you move, and within 6 months jurisdiction over custody and visitation of the children transfers to your new locality. But is that likely? Probably you know best, and, in any case, it’s not like any of us has a crystal ball.

Ultimately, I really can’t recommend that you just up and relocate if you and your husband share minor children in common. You may choose to anyway, but I don’t feel like I can recommend that you do it. There are too many (potentially costly and difficult) variables involved.

When you own your home

Owning your home creates some challenges, too. If you’re going to leave, what’s going to happen to the marital residence? Will he live there and pay the expenses? Will you be expected to share in them?

I don’t think it’s really wise to leave without having a conversation about how the expenses related to the home will be shared – after all, you’ve got a lot invested in the home, too. And, if your name is on the mortgage, you may have a hard time finding a new place to rent and/or buy without freeing things up. I’m not saying you need to refinance the home into his name – really, you shouldn’t do anything without having a larger discussion about equitable distribution and how all of your assets and liabilities will be divided – but it’s definitely a consideration.

Just leaving and hoping it’ll all work out and he’ll pay the expenses on time is a pretty big gamble, and not one that I’m sure I’d be prepared to take without having at least some discussion about how to divide the marital assets and liabilities, including but not limited to the home.
If you don’t have minor children and don’t own your home (or have already resolved issues related to the marital residence).

When it comes to moving, the two big issues are the kids and the house. If you don’t have minor children, there’s not that much tying you to Virginia, except maybe your house – which is often a pretty simple thing to resolve (but one that will likely make it much easier for you to move if you do resolve ahead of time).

Technically speaking, the right place to file is the last place you lived together as husband and wife, so Virginia won’t stop being the right venue for your case just because you move. That’s something that you should be aware of and prepared for – because it’s not like you can move to, say, Colorado, and then just file your divorce in Colorado. Virginia will still handle your divorce.

It’s much easier to do this across state lines if your case is uncontested, rather than contested. In a contested case, it’s not impossible, but you may have to travel back for court appearances, depositions, settlement conferences, and other appointments. That would be done at your own expense so, as you can imagine, the costs could add up exponentially.

In an uncontested case, though, it’s not a big deal – and, in fact, it happens a lot! In a lot of cases, parties don’t live in the same place. We can send documents back and forth electronically, and some courts even accept electronic documents these days – I know, right? Things are crazy when even the courts are moving with the times!

In an uncontested divorce, it’s not a problem. Contested cases are more difficult, but if you’re willing to travel back and forth when necessary, there’s no reason to stay put.

The kids, though, or a lack of agreement about the house and/or equitable distribution in a larger sense may make it not really feasible to move to another state. There’s nothing about a divorce that requires you to live in Virginia – though at least one of you should have lived here at least 6 months prior to filing.

For more information, to request a copy of our divorce book for Virginia women, or to schedule a consultation, give us a call at 757-425-5200 or visit our website at