Getting Divorced While Pregnant | Things to Know [2021] - Online Divorce
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Can I Get a Divorce While Pregnant?

Divorce specialist Jamie Kurtz

Jamie Kurtz has been a practicing divorce lawyer since 2008. She received her Juris Doctorate from Southwestern Law School in Los Angeles in 2007. Ms. Kurtz was selected to Rising Stars for 2013 - 2016, 2019 - 2020, a peer designation awarded only to a select number of accomplished attorneys in each state. She also co-founded a law firm that specializes in uncontested divorce cases.

There are a significant number of divorces among married couples where one spouse is pregnant or the spouses already have an infant child. It often happens that the need to dissolve a marriage arises precisely during the pregnancy, even before the child’s birth.

Going through a divorce is already complicated and stressful, and dealing with pregnancy adds more difficulties to both parties expecting a baby.

You will need to consider several things before trying to end a marriage during pregnancy. They include:

  • custody arrangements
  • child support
  • paternity issues
  • prolongation of the divorce process.

Some of the most pressing problems cannot be resolved until the baby’s birth, while others can be addressed sooner. If a couple wants to proceed with an uncontested divorce, they can negotiate a settlement agreement while waiting for the child’s birth, thus, making it easier to get desirable terms when the time comes.

Can you get divorced while pregnant?

Not all states allow getting divorced while pregnant. The laws in Texas, Arizona, Arkansas, Missouri, and Florida require that the married couple waits until after the child comes to this world before getting a divorce.

The pregnancy significantly complicates a divorce in these states and lengthens the time needed to enter a final judgment. The main reason is that the judge needs to make custody decisions and order financial support. But without the physical existence of a child, it is hard to assess what will be in their best interests.

The good news is that although you cannot obtain a divorce when pregnant in some states, you can still start the divorce process. Generally, filing for divorce while pregnant is not forbidden in such states as California and Ohio, but be prepared to wait until the baby is born to obtain a divorce decree.

And finally, some states allow ending a marriage while a wife is pregnant. For instance, if your pregnant spouse lives in Washington, there won’t be any delays in getting divorced. The one thing to remember is that child support and custody arrangements can be ordered after the child is born.

Steps to consider before filing for divorce

If you are currently expecting a baby and dealing with the necessity to prepare for divorce, you will need to think about a few vital things critical for your future well-being. Besides a lot of divorce paperwork, you are probably experiencing stress from the thoughts about how you will move on after divorce.

A terrifying issue that an average person is afraid to face is financial difficulties after their child’s birth. Consequently, a sound financial strategy is a must when you plan to get divorced.

Another even more important aspect is your child’s future, so be sure to think through all the options for how your decisions will affect them after divorce.

Financial strategy

If you are pregnant and thinking about leaving your husband, you need to plan your future expenses when you are on your own. Most of the time, a newborn child stays with the mother if she’s fit to be a parent. So your budget is likely to change significantly.

While you plan a financial strategy, consider the following:

  • Prenatal expenses
  • Alimony and child support
  • Childcare costs
  • Daycare essentials
  • Future sources of income

You should make a list of all your sources of income and probable expenses and look through the tax returns. Assessing your separate estate and possible part of marital property is also a good idea. Think about childcare costs and daycare essentials, which might be a large part of your future budget.

Remember that you might need to stay home from work for some time, especially in the first few months after the delivery. You will need more financial support during that time. By considering all these details, you could plan a comfortable environment for yourself and your child.

Impact on child custody

The involvement of a husband in the life of his wife during pregnancy can affect the custody arrangements. For instance, if you plan to raise your child alone and anticipate a custody battle, begin monitoring your spouse’s participation in the baby-related activities.

In particular, note all joint visits to the doctor, interest in your health, and all things your spouse has bought for the future child. Your spouse’s involvement or absence during the pregnancy can make a difference for a judge when determining custody.

If both parents are willing to participate equally in the child’s life, they can make a parenting plan. Its contents vary from state to state but typically cover the same key points.

Let’s take a California parenting plan as an example, which includes:

  • Physical custody arrangements, such as with whom a child will be living.
  • Legal custody arrangements concerning daycare, healthcare, education, etc.

In some states that allow divorce during pregnancy, when you choose to start a marriage dissolution process can also impact the husband’s parental rights. You’ll want to consult a legal specialist with extensive experience in such matters to pick the right moment depending on what outcome you desire.

Factors slowing down a divorce during pregnancy

Given that not all states are in a rush to divorce pregnant couples, spouses may face several barriers on the path towards the divorce. These difficulties include establishing paternity, determining custody, assigning child support, and other things.

Let’s consider in detail all the challenges that typically slow down the divorce process.

Paternity establishment

Family law in all states requires that a minor child receive financial support from both parents. If a child stays with the mother, her ex-husband must make direct payments as established in the final marriage dissolution decree. In such a situation, the issue of paternity becomes critical and may delay the final judgment.

For example, a husband may question his paternity and accuse his wife of cheating. In this case, the mother could request a paternity test after the child is born, which will extend the length of the marriage dissolution process.

On the other hand, if the husband is sure that his wife conceived from another man, he needs to provide evidence to the judge. In order to prove that he is not the biological father of the child, he must use one of the following ways:

  • Submit infertility certificates to the court.
  • Take a genetic test and present the results to the judge.

But if a husband refuses to take a paternity test, he cannot deny that he’s the child’s parent. Most states follow a presumption that a child born in marriage and within 300 days after a divorce automatically has both spouses as biological parents.

While everything is evident with the mother, the child’s father is not always the current husband.

Child support

The paternity issues raised above are significant in determining child support. Its amount depends on the parents’ combined gross income, physical custody arrangements, healthcare costs, and sometimes unique needs if a child is disabled.

Both parents have the same rights and obligations regarding their children and must support them financially. It’s doubtful that any court would order support payments for a child that has not yet appeared to the world.

While in several states, you can obtain a final decree and come back later to determine custody and support, in others, you can’t even get divorced while a spouse is pregnant.

Since an underage child’s well-being is of primary concern in any family law case, child support will inevitably become one of the pressing issues that need time to resolve. Only families with uncontested cases can decide in advance the custody arrangements and child support payments.

Changing of residence

Moving to another state during pregnancy is generally not a good idea, especially in the early stages. And yet, it happens occasionally for various reasons. Aside from the risks to fetal and maternal health, questions remain about the jurisdiction of local courts over your divorce.

You should note that you will not be able to file for divorce immediately upon arrival at a new location because most states have the so-called residency requirements.

It means that to even file a lawsuit with the court, you will need to be a resident for a specific amount of days. Typically, you’ll have to be living within the given state’s borders for up to six months.

Only Washington, Alaska, and South Dakota do not have residency requirements.

Again, if your primary motive is to divorce your husband as soon as possible by changing residence, think very carefully about how it might affect your child’s health.

Waiting period

Apart from waiting for the child’s birth to get a final decree, you might face a so-called waiting period. Its length differs from state to state and ranges from 20 to 180 days.

For example, in California, you’ll have to wait six months. In Florida - 20 days. And in Texas - 60 days. Usually, the counting starts when the original petition is filed or after the non-filing spouse has received the divorce papers.

Besides the waiting period between the initiation and official ending of the marriage’s dissolution, there is also a separation period. These concepts are two different things.

Some states, including New Jersey, North Carolina, Ohio, and others, require that the parties live separately for one to two years before filing for divorce on no-fault grounds.

The waiting period was created to give the spouses time to think about their decision again and reconcile if possible. You can also use this delay to collect financial documentation (bank account statements, tax returns, etc.) required in divorce proceedings.

So, is it a good idea to file for divorce while pregnant? There is no universal answer to this question, as many couples experience unique challenges. Each person has to sensibly evaluate their own circumstances and act in kind to ensure the best outcome in the given situation.

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