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RobertJDFL, Lawyer
Category: Family Law
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My wife and I are not legally separated but about to file for

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My wife and I are not legally separated but about to file for divorce. She wants to move out of state with our child. I don't want my child out of state. Is there anything I can do to stop her from taking him out of state. Our plan was to file bankruptcy to get rid of our debt before filing for divorce. Her new idea is to move with my child and have me do all the filing here.

Thank you for your assistance.

Lane McGann

Good evening, thank you for your question.


Absent a custody order, where parents are married, each is presumed to have equal custody of the child and can freely take the child. However, to prevent this, you could go to court and seek a temporary order of physical custody to keep your child in the state. You can get the forms from your local Clerk of Court. There would have to be a hearing on the matter. If your wife leaves the state before the hearing and takes the child, she would have to return with the child, and if the court decides that the child should stay with you, the child would have to be returned to your custody as well.


Your wife's idea to move first and then file for divorce doesn't really work, because in order to do so, she would have to first establish residency, which depending on the state, can take between 6-12 months.



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Customer: replied 5 years ago.
Thank you for your help. If my wife moves out of state and I stay here, I can't file the divorce papers for us?
Sure, you could do that, and file in your state. I may have read your original question too quickly--sorry about that. There's no problem with that.
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