Can I Move Out Before Filing for Divorce?
As a divorce attorney, clients ask me to advise them on whether they should move out first or file for divorce. It’s surprising how many people think that leaving the marital home before divorce is the only option just because they’ve seen it done that way in the media.
However, TV and movies don’t always reflect reality. While moving out of the marital home before divorce doesn’t inherently violate any laws, clients are surprised to learn that whatever they decide can significantly impact the outcome of their case.
Before packing your bags, consider how moving out before the divorce is final can affect finances, custody, and other aspects of the settlement. I carefully review all this and more with case results. Let’s take a closer look at these important considerations.
Is it Bad to Move Out Before a Divorce?
It’s not a question of good or bad, but rather how the court could perceive your leaving early. If you move out before the divorce is finalized, the court might be less inclined to award you shared property, child custody, alimony, and other important outcomes in the divorce settlement.
It can feel demeaning to have a judge weigh in on how you live your life while the divorce is underway and after. But trust me when I say you don’t want your departure to look like abandonment to the judge overseeing your divorce case.
What is Abandonment?
Spousal abandonment happens when a spouse leaves without taking any of their property or marital assets. Colorado is a no-fault divorce state. It only takes one spouse to initiate divorce proceedings.
That being said, the court doesn’t look upon spousal abandonment favorably. While it isn’t illegal, such a determination from a judge will not bode well for your divorce settlement.
Leaving before you and your spouse have had a chance to get your affairs in order can significantly impact how the court treats you. It can also affect the settlement you receive, such as how marital property is divided, whether you receive parenting time, and if you can be trusted with parenting responsibilities.
Chances are you and your soon-to-be ex have contributed equally to the marriage. You don’t want to be left with nothing to show for it.
If you have left the marital home for good without a final decree of divorce on the record, it’s in your best interest to seek an experienced family law attorney.
Can I Move Out Before Filing for Divorce if Domestic Violence Occurred?
Yes. If you are in a dangerous situation, seek help immediately. A skilled family law attorney can help you obtain a temporary restraining order (TRO) by filing a Verified Complaint for Civil Protection Order.
Even in cases where domestic violence hasn’t occurred but is likely to, moving out before divorce might be your safest option.
A good attorney can be one of your biggest allies under such circumstances. For instance, our divorce attorneys can help you procure temporary housing with a domestic violence shelter as we work to get your temporary restraining order and divorce case underway.
Colorado courts can treat an abusive spouse as a deserter in a divorce case, even if you’re the one who left. C.R.S. 13-14-100.2
What Happens if I Leave My House Before a Divorce?
Abandonment can look like many different things. In most cases, the court is going to consider a variety of factors. For instance, if you moved out of the marital home, did you continue to pay your share of the bills? Did you maintain direct lines of communication with your soon-to-be ex and children?
If the answer to the above is “no,” this would be considered a worst-case scenario. It wouldn’t be difficult for an opposing party to label you a deserter in divorce court, which could affect your claim to valuable assets in the settlement.
How Abandonment Affects Property Division
If you co-own the marital home, vehicles, and other forms of property, a judge could decide to award these assets to your spouse because you have abandoned the marriage.
For most couples, the marital home is the most valuable asset. It also could be awarded to whoever continues to live there during divorce proceedings. In most cases, the marital home will be divided fairly amongst both parties. This typically involves court orders to list the property by a certain date.
Note that I said fairly, not equally. The court will likely consider other factors, such as each spouse’s financial situation and how much each spouse contributed to the property’s acquisition.
In cases involving a marital agreement, the court will likely honor it unless a court has overridden it. However, if evidence suggests the agreement has been thrown out, the court is unlikely to reinstate it.
This was the case In re Marriage of Young. The couple signed a prenuptial agreement before marrying, agreed during the marriage they no longer needed it, and could not reinstate it decades later at the time of divorce.
What Happens if I Leave the House Before Divorce and Forget Something?
If you’re the type of person who always feels like they’re forgetting something when leaving the house, odds are you’ll leave something important behind while moving out.
What people fail to consider in the heat of the moment is that getting divorced involves a lot of document procurement for proof of ownership of items of value, like vehicles.
The more emotionally fraught your divorce, the less likely you’ll be able to reenter the home to retrieve personal items. Whether you can return to retrieve personal items may depend on your spouse and any legal proceedings underway.
Can I Move Out Before Filing for Divorce if We Have Children?
If you have children and are wondering what happens if you leave the house before divorce, you should consider how moving out could affect your parenting time and decision-making responsibilities.
Evidence of abandonment doesn’t bode well for your outlook when it comes to parenting time and responsibility awards.
Simply put, moving on before a divorce is final can negatively affect your child custody claim in a major way. Moving out early could limit your parenting time during the divorce, and the court may award custody in favor of the partner who stayed in the marital residence with the child.
How Abandonment Affects Child Support Orders
Ceasing to support your child financially during a marital separation won’t win you any points with the judge. In fact, it’s likely to put you in the negative.
Child support is designed to help a family maintain the child’s standard of living after divorce, approximating the financial benefits a child would have received from a lasting marriage. The court makes child support orders based on the information the judge has at the time of the hearings.
Moving on before the divorce is final doesn’t preclude a parent from fulfilling their financial obligations to their child. C.R.S. 14-5-202
If a parent has received court orders to pay child support and is unable to fulfill this financial obligation, it’s up to them to seek a modification.
How Abandonment Affects Child Custody Determinations
Abandonment is considered a question of intent measured by the parent’s actions. Colorado courts make custody determinations based on what’s in the best interest of the child.
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) provides courts two ways to make a determination. One is temporary emergency jurisdiction, which can apply to a child in Colorado who is found to have been abandoned or is at risk of mistreatment or abuse.
As my R&H family law colleague has observed, questionable updates to child custody proceedings in Colorado are underway. However, it’s typical for family law judges to appoint professionals to weigh in when there are disagreements over what’s in the child’s best interest.
What these professionals observe and report back to the judge would undoubtedly impact how your child custody case plays out.
What if we Already Created a Parenting Plan?
Now, let’s say you and your spouse came up with an arrangement before you moved out. Could you still be accused of abandonment?
Depends. Does the judge know about your parenting plan?
When a parent leaves the marital home before filing for divorce, the absence inevitably disrupts the child’s life. The court’s main concern is that during this difficult time, the parents are acting within the child’s best interests.
Come with ideas. However, once divorce is imminent, it’s a judge’s duty to participate in the creation of a parenting plan when a parent moves out of the marital home before filing for divorce. How the court treats parenting plans in such cases varies.
As soon as a parent moves out of the marital home, a judge is legally obligated to get involved. This is to ensure the parenting plan enacted is both reasonable and in the children’s best interest.
Talk to a Divorce Attorney Before Moving Out
If you are still wondering, “Can I move out before filing for divorce?” or are in a situation where your husband or wife moved out before divorce, let’s talk. Call (720) 895-9834 to begin your case assessment.
