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Can I Move Out of State During a ...


Relocating out of state during a divorce might be permissible and legal in numerous situations, but it could lead to complications depending on your circumstances. When you or your spouse contacts an attorney to begin proceedings, it's natural for one of you to consider moving out of the shared home while the divorce is pending. The scenario is common among divorcing couples, as cohabitating with your spouse during the process can be challenging, even if you maintain amicable relations. 

Legal Guidelines When Moving Out of State During a Divorce 

Unlike a criminal case where leaving the state may be restricted, a divorce allows you the freedom to move or reside anywhere you choose. However, you must meet the court’s residency requirements for the state to have jurisdiction over your divorce.  

Colorado law stipulates the following:  

  • At least one party must have been a resident for at least 91 days (about 3 months) before filing the Petition for Dissolution of Marriage.  

  • If children are involved, Colorado must have been their home state for at least 181 days (about 6 months) for the state to have jurisdiction over child custody and child support-related matters. 

  • If you decide to move out of Colorado during the divorce, you might still need to return to the state to manage your case, as once the divorce is filed in Colorado, you must complete the process in that court.  

Given the increasing availability of remote document signing and virtual court appearances or mediation, it's possible that you won't need to return to Colorado for your divorce to be finalized in person. However, you must be prepared to adhere to the court’s requirements regarding your planned out-of-state relocation.  

How a Mid-Divorce Out-of-State Relocation is Complicated When Children are Involved 

Relocating out of state while a divorce is pending becomes more complex when children are involved. Although the court cannot dictate where you can live or move, it does have jurisdiction over your children and can prevent them from leaving Colorado during the divorce process. If you're considering moving out of state, it's crucial to consult a divorce attorney about your options before filing for divorce or while your case is ongoing. 

In Colorado, when you file a Petition for Dissolution of Marriage with Children, an automatic statutory injunction is imposed, preventing either party from taking the children out of Colorado without permission from the other party or the court.  

Most cases involving out-of-state moves and divorce proceedings are determined according to the precedent established in Spahmer v. Guillette, 113 P.3d 158 (2005), which guides how the court will evaluate out-of-state relocation requests involving children. The child's best interests are always the primary focus when making relocation decisions.  

Factors that may be considered include: 

  • The reasons for the move 

  • The impact on the child's quality of life  

  • The feasibility of maintaining a meaningful relationship with the non-relocating parent 

If you plan to relocate with your children before finalizing the divorce, you must notify the court and your spouse of your intentions. This allows for the incorporation of your plans into any final settlement or permanent orders and the development of a parenting plan based on each spouse's intended location. 

Can Moving Out-of-State Could Impact Your Property Rights? 

When it comes to property rights, a common misconception is that leaving the marital home during a divorce implies forfeiting your rights or entitlement to the property. However, this is not the case. For many divorcing couples, the marital home is their most valuable asset, and deciding who will move out can be a source of conflict. The issue can become particularly contentious and emotionally charged when children are involved. Unfortunately, the marital home is sometimes used to create unnecessary conflict. Understanding the law, your rights, and how to protect yourself regarding essential assets like your home and moving with minor children is crucial. 

Generally, in divorce cases involving shared marital property:  

  • The spouse staying in the marital home does not automatically gain a greater legal claim or interest in the house during the property division phase.  

  • Colorado law requires the court to divide all marital property equitably, considering various factors such as financial resources, care of younger children, and more.  

  • Possession of assets is generally not a significant factor in determining an overall equitable division of the marital estate. 

If you need guidance or assistance navigating property rights and parental responsibilities while preparing to divorce, contact Solutions Based Family Law at (720) 463-2232 for legal advice from seasoned professionals. We can help you understand these complicated issues so that you know your rights and your options.