Divorce while pregnant adds another layer of complexity to an already meticulous process. Whereas before you may only have been concerned about spousal support and property division, now you’ll likely want to address child custody, child support and possibly issues like establishing paternity. At the same time, you may not be able to finalize your divorce until the baby arrives.
This may seem like a setback, but some knowledge can help you better navigate divorce while pregnant and continue to seek the arrangements you desire.
In this article, we’ll discuss important things to know if you’re seeking a divorce while expecting. First we’ll go over what states allow you to divorce while pregnant. Then we’ll address key things to consider before filing and how long a divorce takes if one person is pregnant.
Can you get divorced while pregnant?
You can file for a divorce while you or your spouse is pregnant. However, states generally require divorcing couples to identify all minor children of the marriage and disclose whether the wife is pregnant on the initial divorce complaint or petition. Additionally, judges in some jurisdictions may refuse to finalize a divorce involving a pregnant partner until after the child is born.
What states allow divorce while pregnant?
The majority of states in the U.S. allow pregnant spouses to file for divorce. But some states hold off on finalizing a divorce until the child is born. And even if the divorce of a pregnant individual is permitted in your state, a judge in your jurisdiction might be less willing to finalize a divorce before the child is born.
A divorce attorney in your area can help you understand the rules of your state and jurisdiction.
Things to consider before filing for divorce
Initiating a divorce while a baby is on the way may be no different from petitioning for a divorce when neither spouse is pregnant. But determining some matters of a divorce is typically more difficult since the child hasn’t arrived. This can include:
- Paternity
- Child custody
- Spousal support
Establishing paternity
Before a court can rule on child custody and child support in a divorce involving a pregnant spouse, it has to know or decide who the father is.
There’s a general legal presumption that a woman’s husband is the father of her child if the child is born during the marriage or within a certain period of time after the marriage ends. If either spouse claims the father is someone else, they need to participate in additional legal proceedings to establish paternity. This can be done through a potentially lengthy paternity hearing, which can be initiated by the husband, the wife or the person reputed to be the father.
Child custody or parental responsibilities
Family court judges make divorce decisions involving children based on what’s in each child’s best interests. To determine this, a court might take into account the following:
- The child’s relationship with each parent
- The child’s interactions with each parent
- Each parent’s ability to care for the child
- The child’s attachment to their home, community and school
- Whether each parent is able to facilitate a close bond between the child and the other parent
- Each parent’s ability to place the child’s needs ahead of their own
Judges in many states won’t finalize a divorce decree involving a pregnant spouse because they don’t have enough of this information to conclude what type of child custody arrangement would be in the best interests of the unborn child.
That said, an expecting couple may be able to increase the likelihood of a judge finalizing their divorce if they can agree to all terms of custody in a joint, written parenting agreement. This agreement must receive approval from a judge before it becomes part of the divorce decree.
Spousal support
Not every divorcing spouse is entitled to spousal support (sometimes called alimony). If spousal maintenance is an option, the amount and duration might depend on factors such as:
- The health of the spouse seeking support
- The earning capacity of the spouse seeking support
- The amount of debt the spouse seeking support has
- The impact that childcare needs have had on either spouse’s professional life
- The paying spouse’s income and ability to pay
- The standard of living the spouses enjoyed during the marriage
Some of these factors can be hard to quantify before a divorcing parent gives birth. Bearing a child and the effects it can have on one’s personal and professional life is unpredictable, and everyone’s experience is different. Therefore, a judge might hesitate to make decisions regarding spousal support before a divorcing spouse’s baby is born.
Also, if you’re currently pregnant, divorcing without knowing how the birth of your child might affect you could put you at a disadvantage in dissolution proceedings. You might end up needing more financial assistance than your divorce decree anticipated.
How long does divorce take when you’re pregnant?
In general, a divorce can take several months or several years to finalize. Divorce may take longer than average for expecting parents, though, due to complications such as:
- Paternity disputes between a divorcing party and a third party
- Health complications of the pregnant spouse
- A judge who refuses to grant a divorce before the pregnant spouse gives birth
- Health complications of the child that are discovered in utero
With options like uncontested and simplified divorce, not every couple who gets a divorce has to go through protracted and contentious court proceedings to officially split. However, some states prohibit pregnant spouses from filing for a simplified divorce.
When to speak with an attorney
Expecting couples often find attorney assistance beneficial during a divorce. An attorney can help with the following:
- Selecting the type of divorce procedure that applies to your case and covers your needs
- Properly addressing the pregnancy in the divorce petition or other divorce motions
- Appropriately responding to or filing petitions to establish paternity
- Gathering and presenting relevant evidence to persuade a judge to enter the final divorce decree before the child is born
- Obtaining the spousal and child support that a pregnant client deserves
- Preventing a client from paying more support than necessary
Sofie is a writer. She lives in Brooklyn.
