Can You Get Divorced While Pregnant?

• Can I file for divorce during pregnancy?
• Can a divorce be finalized during pregnancy?
• Complications of pregnancy during divorce
• States that prohibit it
• Divorcing in another state
• Common questions about pregnancy & divorce
• Safety checklist
• Legal help
• References

Pregnancy can be a joyous time for many couples. However, if you learn you’re pregnant when on the verge of divorce, the news may not be quite so positive. In fact, if you’re stuck in an unhealthy marriage while carrying a child, you may feel hopeless, frustrated, defeated, and scared.

Some couples assume that pregnancy locks them into their failing marriage for several more months, but that isn’t always the case. It depends on your situation and where you live.

Can I file for divorce during pregnancy?

Most states do not have laws preventing couples from filing for divorce during pregnancy. However, pregnancy complicates the process no matter where you live.

When you file a divorce petition or complaint, you are required to list any children you share. Many states require you to list unborn children or disclose your pregnancy in the petition paperwork. Based on state laws, the judge may or may not move forward with your proceedings until after your child is born.

If you are desperate to dissolve your marriage, you might think an easy solution would be to hide the pregnancy and push the divorce through the court system before the baby is born. However, you cannot lie about your pregnancy when you file your divorce petition because you will eventually be asked about unborn children again before the divorce is finalized. If you don't disclose the pregnancy, it is considered perjury, or lying under oath. Perjury has serious consequences.

Can a divorce be finalized during pregnancy?

Although most states allow you to file for divorce during pregnancy, not every state allows you to finalize the divorce before the child is born. So, if you are pregnant and want to file for divorce, you’ll likely want to find out where your state stands on this issue before you invest the time and money into an attorney.

For example, Arizona, Arkansas, Missouri, and Texas will not grant a divorce to pregnant couples. Instead, judges in these states place a temporary stay (or hold) on the divorce proceedings until after the child's birth so they can include custody arrangements and child support in the final divorce decree. This is also true in California, Florida, Ohio, and several other states.

Some states, such as Massachusetts, New York, and Washington, allow couples to file for and finalize divorces during pregnancy. In states like these, judges may not delay divorce proceedings solely because of pregnancy. This doesn't mean the divorce won't be held up for other reasons, like the couple's inability to divide assets, but it does mean that no laws require the judge to postpone the decree until the birth.

There are also states where the laws surrounding pregnancy and divorce give the judge discretion. A case could go either way. For example, Michigan law allows a judge to decide if they will grant a divorce during pregnancy or require the couple to wait until after the birth. Further, judges can require couples to reappear in court after the birth to add child support and custody provisions to the divorce decree.

Complications: pregnancy during the divorce process

Pregnancy during the divorce process can introduce numerous complications, both legally and emotionally. Understanding these challenges can help you prepare and navigate the process more effectively.

1. Legal complications

• Finalization of divorce: Many state courts may be reluctant to finalize a divorce until after the child is born. 
• Paternity issues: If there's any question about the paternity of the child, the court may require paternity testing. 
• Custody and visitation: The court may hesitate to make decisions about custody and visitation before the baby is born.
• Child support: The court may address child support during the pregnancy, but it typically becomes a more significant issue after the birth. You may be able to request temporary financial support to cover pregnancy-related expenses.
• Health insurance: Ensuring that you and your unborn child have health insurance coverage is crucial, especially if your spouse provides the family’s insurance.

2. Emotional and psychological complications

• Stress: Divorce is inherently stressful, and adding a pregnancy to the mix can intensify feelings of anxiety, uncertainty, and emotional strain. This can affect the mother’s mental and physical well-being, which could affect the unborn child.
• Support system: If feeling isolated or overwhelmed, it’s important to have a strong support system, including friends, family, and possibly a counselor or therapist.
• Coping with change: The prospect of becoming a single parent, changes in your living situation, and financial concerns can be daunting. Planning ahead and seeking help can make it easier.

Free Download: Pre-Leaving Checklist

3. Financial complications

• Temporary financial support: You may need to request temporary spousal support or financial assistance to cover pregnancy-related expenses, especially if you're unable to work.
• Housing/living arrangements: You may need to consider the stability and suitability of your living situation or housing options for you and your baby.
• Division of assets: Negotiating the division of marital assets can be more complex, especially if future expenses related to the child are considered.

4. Custody and parental rights

• Custody decisions: Courts prioritize the best interests of the child when making custody decisions. While it's difficult to determine custody before the child is born, post-birth custody arrangements will be influenced by the parent’s ability to provide a stable and supportive environment.
• Visitation rights: If the other parent seeks visitation rights, the court may initially set temporary visitation schedules, which could evolve once the child is born.
• Parental responsibilities: Both parents will need to address how they plan to share responsibilities such as medical decisions, education, and general care of the child. This can be difficult to agree upon during a contentious divorce.

5. Practical considerations

• Birth plans and medical decisions: The court may need to consider who has the authority to make medical decisions during the pregnancy and delivery. 
• Naming the child: This is something that may need to be addressed either privately between the parents or through legal guidance.
• Future parenting plans: Drafting a parenting plan before the child is born might be challenging, but helps to map out a solid plan.
• Timing: Depending on your state’s laws and your specific circumstances, you may want or need to delay the finalization of the divorce until after the birth.
• Protecting your rights: Craft a strategy that protects your rights and interests, especially concerning custody and support.
• Prioritize health: Your physical and emotional well-being are paramount. Take steps to manage stress, go to appointments, and seek support.
• Access to resources: Make sure you have access to necessary health, legal and financial resources.

Why do some states prohibit divorce during pregnancy?

Each state has its own reasons for its divorce laws. In most cases, though, it boils down to one thing: the judge cannot issue a ruling for a child they haven’t met.

Judges usually like having all possible information about a child before making decisions about custody and financial support. This helps them promote the child’s best interests. For an unborn child, it's almost impossible for a judge to know what an unborn child's best interests truly are.

Furthermore, some states do not allow custody arrangements or child support agreements to be created until after a child is born. In other words, any agreement finalized during pregnancy would need to be revisited upon the birth. This creates additional work for the judge, not to mention financial implications for the couple who just paid for a divorce.

Could I go to another state to get divorced during pregnancy?

If you live in a state that prohibits divorce during pregnancy, you might be tempted to move to a state that allows it. However, many states also have residency requirements before divorce. You must live within the state for a set period of time before you can file for divorce in that state.

For example, let's say you live in Texas, where a divorce cannot be finalized during pregnancy. But neighboring states New Mexico and Oklahoma both allow divorce during pregnancy. You could move to one of those states to file for divorce. However, you would have to live there for at least six months before filing to meet the residency requirements.

Establishing residency in a new state

Establishing residency in a new state isn’t as simple as setting up a post office box and having mail sent there. In most cases, you must establish a domicile, or permanent residence, within that state. 

To legally prove you reside in a state, you must do the following:

• Change your mailing address to that state
• Update your voter registration and driver’s license
• Purchase or lease a residence in that state
• Move what is “near and dear” to you into your new residence
• Provide proof of employment (or proof of remote employment)

It may or may not be practical to move to a new state just so you can get divorced during pregnancy. Residency requirements vary by state. Some states, like Utah, only require couples to live there for three months before filing for divorce. Other states require residency for up to 12 months before filing. Thus, it may not make sense to relocate just to petition for divorce. Furthermore, moving during pregnancy can be an overwhelming task.

FAQ about divorce during pregnancy

Could a judge deny a divorce during pregnancy even if there’s no law against it?

Many states give judges the final say when it comes to issuing a divorce decree during pregnancy. While this is definitely frustrating information to receive, there are valid reasons for it. If a judge puts a divorce case on hold during pregnancy, it is likely that child support and other matters regarding the child’s welfare can be established properly. 

A judge may also decide to “wait and see” if paternity questions arise. This is because many state laws deem the husband as the father during pregnancy regardless of whether he actually is. 

Note: In states like California, the paternity of the child could also impact the assumed date of separation, which in turn could impact many aspects of the divorce. Therefore, if there’s any question about who the father is, a judge will likely push the divorce until after the child is born so paternity can be established.

Should divorcing fathers (and mothers) worry about establishing paternity?

Regardless of whether you file for divorce while pregnant or wait until the child is born, you may want to legally establish paternity as soon as possible. 

Without establishing parentage through the court, a father may not have visitation rights or access to medical records. He also may not be required to pay child support. These issues matter to both parents. Paternity can be established through a voluntary filing if both parents agree on the child’s parentage.

In some states, like Florida and Texas, the court assumes the husband is the father of the child. Therefore, if the husband is not the father of the child, you would need to file a motion to establish paternity.

Read more about the paternity establishment process:

• Parental Obligation and Challenging Paternity: What to Know
• What Is a Paternity Suit?
• Donor Agreements, Parental Rights, and Same Sex Divorce

Safety checklist for pregnant women who feel unsafe and want to leave their partner

1.  Make a plan: Know where you can go if you need to leave quickly (such as a trusted friend's house or nearby shelter). Keep essentials like IDs, keys, important documents, and cash or a checkbook in a packed bag in an easily accessible place.
2.  Secure important documents: Save financial records, insurance information, medical records, and any legal documents in a safe place. Try to save digital copies in a secure, private dropbox online or in your email. Keep these documents in a secure location, possibly outside your home.
3.  Contact support sources: If you know it will stay private, Inform at least one trusted person or group about your plan.
4.  Seek legal help: Contact a family law attorney who can guide you through the divorce process and help with protective orders, such as a temporary restraining order. You may qualify for free legal aid or help – search the internet for those near you.
5.  Maintain a private channel of communication: Communicate with others using a phone or computer that your spouse cannot access. Update passwords for your email, social media, and banking accounts or set up new ones.
6.  Separate finances: If possible, open a bank account in your name to secure your finances. Mostly, this is to be able to pay for things if your partner cuts you off.
7.  Inform your healthcare providers: Continue going to prenatal appointments and inform your healthcare provider about your situation and if you do not want your partner present.
8.  Prepare for action: Keep a list of emergency contacts easily accessible. Document any incidents of abuse, including dates, times, and descriptions, and store them in a safe place. Take photos if you have visible signs of abuse.
9.  Trust your instincts: If you feel unsafe, take action immediately to protect yourself and your child.

By following this checklist, you can take proactive steps to ensure your safety while preparing for a divorce. If you decide to seek legal help, keep reading.

Recommended reading:

• Domestic Violence and Child Custody: Keeping the Kids Safe
• What Domestic Abuse Victims Need to Know about Leaving and Divorce
• Emotional Healing after Domestic Abuse
• What is Post Separation Abuse?
• Divorce When Substance Abuse Is Involved

Legal help if you're pregnant but want a divorce

Divorce is never easy, but the process becomes exponentially more difficult when children are involved. In fact, any divorce involving pregnancy is easily on the list of divorce situations where you don’t want to skip legal counsel. Therefore, working with a professional advisor early on is advisable, even if you cannot finalize your divorce until after the baby is born.

Here’s an overview of options for legal advice and representation:

Consult an attorney

• Look for an attorney who specializes in family law, as they will have experience with divorce, child custody, and related issues. Some also have experience with domestic abuse cases.
• Many attorneys offer a free or low-cost initial consultation. During this meeting, you can discuss your situation, learn about your rights, and understand the legal process.
• If you decide to proceed with a divorce, your attorney will represent you in negotiations, court appearances, and ensure your rights are protected.

State laws

• Residency requirements: Divorce laws vary by state, including residency requirements, waiting periods, and specific rules related to pregnancy. You may have to wait to file, too.
• Custody and child support: States have different approaches to custody and child support, especially concerning an unborn child. Many states may delay finalizing a divorce until after the child is born.

Mediation and collaborative divorce

• Mediation: A mediator can help you and your spouse reach an agreement on divorce terms without going to court. This option may be less stressful and more cost-effective, but only if your spouse is willing to work with the mediator.
• Collaborative divorce: Here, both parties agree to work together to reach a settlement with the help of attorneys and other professionals. It’s designed to be more cooperative and less adversarial than traditional contested divorce in court.

Legal aid and pro bono services

If you have limited financial resources, you may qualify for legal aid or pro bono (free) services from attorneys or legal clinics. Some nonprofit organizations provide support and legal services specifically for women or expectant mothers.

Temporary orders

You can request temporary orders for financial support during the divorce process, including spousal support and expenses related to the pregnancy. Temporary custody orders may also be necessary, especially once the child is born. You can also seek a restraining order.

Emotional and practical support

Divorce can be emotionally challenging, especially during pregnancy. Consider seeking counseling or therapy for additional support, or get friends to help with driving you to appointments or doing chores.

Conclusion

We don’t often recommend “lawyering up” at Hello Divorce – but in cases where safety is a concern, it’s often necessary. While many attorneys require a retainer and an established contract before they will help you, Hello Divorce offers a la carte legal coaching services in different increments of time depending on your needs. Reach out to us if you have any questions.

References

Here for You. National Domestic Violence Hotline.
National Life Center Helpline. NationalLifeCenter.com.
What Is Required to Get Divorced in Michigan? Michigan Legal Help.