What You Need to Know About Getting Divorced While Pregnant

While pregnancy is a happy event for many married couples, it can also push strained relationships to the breaking point. Every year, thousands of couples decide to end their marriage while one person is pregnant. That’s fine in many places, but it can cause legal complications in states with specific paternity laws.

After the Supreme Court overturned Roe v. Wade, the news cycle was full of reports that people in Missouri can’t get divorced while pregnant. This is true, but Missouri isn’t the only state with these laws. Other states that prevent people from divorcing while pregnant include Arizona, Arkansas, Texas, and California.

Obviously, this poses problems for pregnant people in bad relationships. In places like Missouri and Texas, the law is particularly dangerous because abortion is illegal in almost all cases. These people may be forced to remain in a bad marriage until they give birth to a child they don’t want to carry.

The problem isn’t quite as bad in California, where abortion is legal until the point of fetal viability. However, pregnant people who want to end their marriage while keeping the baby remain in a difficult situation. Here’s what you need to know about getting divorced in California if you’re pregnant.

California Laws Regarding Children, Pregnancy, and Divorce

California has clear, comprehensive laws regarding child custody and support. These laws simplify awarding child support by instituting a specific calculator to determine if and how much one parent will pay the other to contribute to the costs of raising their kids.

However, these laws rely on knowing the children’s paternity. Child custody and support are typically split between the children’s legal parents, which requires there to be two acknowledged parents in the first place.

The parentage of a child is automatically assigned to the spouse of any person who gives birth while married. A partner can voluntarily claim paternity with the first parent’s approval if the birthing parent is unmarried. Otherwise, either parent can pursue a paternity claim for a child that will use genetic sampling to determine if a potential father is really related.

However, this gets complicated if a couple was married but got divorced before the child was born. California has chosen to resolve the issue by requiring pregnant people to wait until they give birth to finalize their divorce. This way, the child is born to a married couple, both parents are legally recognized, and they can determine custody and support accordingly.

Of course, this still leaves many people in complicated situations. For instance, if a baby is not actually fathered by the pregnant person’s spouse, this adds legal complications to the paternity question. Furthermore, as stated earlier, people in dangerous relationships may have to wait months longer to have their divorce finalized. In this case, the pregnant person may be able to get a restraining order to remain safe from their partner until the divorce is final.

What to Consider If You’re Pregnant and Want a Divorce

If you want to end your marriage despite being pregnant, you have options. While your divorce can’t be finalized until your baby is born, you can handle many other aspects of your split in advance. Here are three things to consider during your split that can help keep the process running smoothly despite your pregnancy.

Due Date

Depending on how long you’ve already been pregnant, your baby may not impact when your divorce can be finalized at all. Many people don’t discover that they’re pregnant until they’re six or more weeks into their pregnancy. That means they only have eight months left until they deliver. Even if you choose to divorce in your first trimester, you may have six months or less before your baby is born.

That matters because California has a mandatory six-month waiting period before finalizing any divorce. Regardless of how quickly you determine your divorce settlement, the courts won’t make your split official until six months after you first served your spouse with papers. As a result, unless you get pregnant after you’ve already started the divorce process, it’s likely that your pregnancy won’t significantly lengthen the time it takes to split.

Paternity

If you know the child isn’t biologically related to your spouse, you should prepare for a complicated paternity case. Unless you, your spouse, and the baby’s biological parent are all willing for your spouse to have legal paternity of the child, you will need to prepare to establish parentage.

This will accomplish two things. First, it will remove the matter of custody and child support from your divorce entirely, potentially simplifying the situation. Second, it will grant your baby’s biological parent the legal rights and responsibilities for that child. However, this can be a complicated family law matter, so you should seek to work with an experienced divorce and child custody attorney to handle the situation appropriately.

Custody and Support

If your divorce timeline is going to be delayed while you wait to give birth, you can still use that time wisely. You and your spouse can work together to draft child custody and support agreements and a parenting plan for the baby. If you organize these details in advance, you can avoid dragging out the process any further.

If your divorce settlement is complete and ready for final approval, the court can finalize your split potentially within a few business days of your child’s birth. Collaborating with your spouse on these details will give you less to worry about after delivering a baby and put you on the right track for a successful co-parenting relationship.

Don’t Let Pregnancy Prevent You from Leaving

While pregnancy makes divorce more complex, it doesn’t make it impossible. If you’re sure that you want to end your marriage, don’t let a pregnancy scare you off. You can work with expert family law attorneys like the team at Kaspar & Lugay, LLP, to navigate the complications of your split effectively. Get in touch to schedule your consultation and learn how our divorce lawyers can help you end your marriage and keep your child.

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Kaspar & Lugay, LLP is a family law firm with offices in Corte Madera, CA; Napa, CA; Walnut Creek, CA; and San Diego, CA. We also represent clients in San Francisco, Oakland, Sacramento, Pismo Beach, Contra Costa County, and Los Angeles.