Getting a Divorce While Pregnant

The end of a marriage can be stressful enough on its own. But if you also happen to be pregnant when facing divorce, you'll have extra legal and practical issues to deal with. Can you even get divorced while you (or your spouse) is pregnant? How will it affect the process and outcome of your divorce—especially when it comes to issues like custody and support for your future child? What if there's some question about whether the mother's spouse is actually the baby's parent? There may not be easy answers to all of these questions, but it helps to know what the law actually says—or doesn't say—about divorce and pregnancy.

Does Your State Prevent Divorce During Pregnancy?

It shouldn't be surprising to learn that there's a lot of misinformation online about pregnancy and divorce. You may have read that the laws in some states ban divorce during pregnancy. Not true. No states have laws that prohibit getting a divorce when one spouse is pregnant.

In practice, however, pregnancy might mean that it will take longer to get your divorce, depending on where you live and the specific circumstances—and maybe even which judge is assigned to your case. For example:

• State laws on pregnancy-related delays: The laws in some states affect whether pregnancy will lead to delays in divorce proceedings. In Kentucky, for instance, the law specifically allows—but doesn't require—judges to delay the final divorce until the end of the pregnancy. (Ky. Rev. Stat. § 403.150(7) (2024).) In contrast, Washington State prohibits judges from delaying or denying a final divorce (or "dissolution") just because a spouse is pregnant. (Wash. Rev. Code § 26.09.030(e) (2024).) There have been legislative moves to try and follow Washington's example. In most states, however, the laws on finalizing divorce don't say anything about pregnancy one way or another.
• Restrictions on simplified divorce proceedings. In many states, couples have the option of using special avenues to divorce, like summary dissolution in California, simplified dissolution in Florida, and agreed divorce in Tennessee. These proceedings are even quicker, easier, and cheaper than regular uncontested divorces. They do have special requirements, and they typically aren't available to couples who have minor children, or when one spouse is pregnant. But that doesn't mean you can't get divorced in these states while pregnant—just that you can't take advantage of these streamlined procedures.
• Unresolved issues. All divorces must include orders resolving certain issues, including child support and custody if the couple has children. That's why you need to indicate whether you have minor children, and whether one spouse is pregnant, when you fill out the paperwork to file for divorce. But the judge may not issue custody or child support orders until a child is actually born, and any questions about the parentage of the future child might have to be resolved before the divorce is final. (More below on how the laws and courts deal with those issues, and whether they'll lead to delays.)

• Waiting periods for divorce. Many states have mandatory waiting periods from when you start the divorce process to when your divorce may become final. These waiting periods vary from state to state. If they're on the longer side—such as the six-month waiting period in California—they could have the practical effect of postponing the final divorce until a pregnant spouse gives birth. (Fam. Code § 2339 (2024). Even when a state has a shorter mandatory waiting period (or none at all), it typically takes several months to get divorced—and much longer when couples can't quickly resolve disagreements about all of the issues in their divorce. In fact, a divorce survey conducted by Martindale-Nolo showed that even when couples had no disputed issues, it took an average of eight months to get their final divorce. This means that a spouse who was pregnant at the start of the process will often give birth before the divorce has completed, regardless of any legal restrictions on divorce and pregnancy.

Can Judges Issue Custody and Child Support Orders When a Spouse Is Pregnant?

In the context of divorce or other custody battles between parents, judges generally may not issue orders concerning the custody and support of a child who isn't born yet. There are practical and legal reasons for this. For one thing, judges and parents usually can't know before the birth if the baby will have special needs, which could affect parenting arrangements and medical expenses.

Also, under the law in almost all states known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), state courts generally have the legal authority (jurisdiction, in legalese) to issue custody orders for children who have lived in that state with a parent for at least six months just before the beginning of the divorce or other custody case—or, if the child is younger than six months old, since the child was born.

Court cases involving this provision in the UCCJEA usually center on disputes over which state's courts can decide on a child's custody—for instance, when a pregnant mother moves to a different state after the couple has separated. But when courts have directly examined whether a judge has the legal authority to issue custody orders before a child is born, they've mostly concluded that the answer is no. (See, for example, Tex. Fam. Code §§ 152.102(7), 152.201(a)(1) (2024); Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex. Ct. App. 2008).)

However, it's worth pointing out that the so-called fetal personhood movement—the political and legal push to treat fetuses and embryos (even frozen embryos) as full human beings—could conceivably affect the question of whether judges can issue legal custody orders in a divorce proceeding before the baby's birth. And in a different context—when a pregnant women is accused of endangering her fetus—many courts have long had the authority to issue orders affecting custody before a child is born. (See, for example, N.J. Stat. § 30:4C-11 (2024).)

How Paternity Disputes Affect Divorce During Pregnancy

If there's a question about whether a pregnant woman's husband is the baby's father, that might delay the final divorce—depending, once again, on the circumstances and state laws.

When a married woman has a child or gets pregnant, state laws presume that her spouse is the baby's parent. The details vary from state to state, but this paternity presumption—sometimes called a parenthood or marital presumption—usually applies when the child was conceived during the marriage or was born within the typical gestational period after the marriage ended. Courts in several states have held that the parenthood presumption also applies to the wife of a woman who had a child during the marriage using assisted reproduction.

Typically, the husband or another man may try to "rebut" (overcome) the parenthood presumption by filing a legal proceeding to establish (or "disestablish") paternity or parentage. In some states, judges won't issue a final divorce until these disputes are resolved. Although it's usually possible to get a prenatal paternity test, that won't always solve the problem. Under Texas law, for instance, a parentage action that started while the mother was still pregnant may not be concluded until after the child is born. (Tex. Fam. Code § 160.611 (2024).)

How Judges Deal With Divorces During Pregnancy

Judges have different ways of dealing with the hurdles involved in divorce while a spouse is pregnant. The choice between these options can depend on state law, the favored practice in certain courts, or the specifics of the couple's circumstances.

Divorce With a Reservation of Jurisdiction (Bifurcated Divorce)

In several states, judges have the option of granting a divorce while maintaining the legal authority ("jurisdiction," in legalese) to rule later on some of the issues that weren't dealt with in the divorce judgment. This is known as a reservation of jurisdiction or a "bifurcated" divorce—meaning that the status of a couple's marriage is handled separately from the other issues that must be addressed in a divorce. In some states, the laws specifically allow a bifurcated divorce, at least in some circumstances. In other states, courts have endorsed the practice. But even when it's allowed in a state, it will generally be up to the judge to decide whether to grant a request to finalize your divorce with a reservation of jurisdiction—unless you and your spouse agree on the request.

If you've received a "status-only" divorce while you're still pregnant, or a divorce judgment that addressed only some issues (like property division), you'll need to come back to court after the child is born to get orders addressing child support, custody, and any other issues that weren't already resolved. If you and your ex can reach an agreement on those issues, you'll still have to submit your agreement to the court so that a judge can review it and—if it's in the child's best interests—make it part of an official court order.

Delay the Final Divorce

Unless it's prohibited under state law (as discussed above), judges or couples often decide that it's more efficient to delay the final divorce until the child is born. That way, the divorce decree or judgment can include all of the necessary custody and child support orders, and the parents and judge don't have to revisit those issues in subsequent court proceedings.

Some courts have established a strong preference for this option. For instance, the Indiana Supreme Court has advised that when there's an unresolved paternity dispute, it's "better practice" to delay the final divorce while the wife is pregnant rather than grant the divorce with a reservation of jurisdiction, "unless circumstances dictate otherwise." (L.F.R. v. R.A.R.,378 N.E.2d 855 (Ind. 1978).)

Why Rush to Divorce?

It may seem counterintuitive that a pregnant woman would be in a hurry to get a final divorce. Even in troubled marriages, pregnancy often brings couples closer together—if only temporarily. But that's not always the case. And pregnant women may have good reasons for wanting a divorce as quickly as possible, such as:

• When your husband isn't the baby's father. In this situation, you may want to remarry soon for practical as well as emotional reasons. If the law in your state allows it, this might be a justification for not delaying the final divorce. In one Illinois case, a woman who was pregnant by her lover—not her husband—wanted to get a divorce quickly so that she could marry the baby's father and get on his health insurance before she gave birth. The trial court granted her a bifurcated divorce. Although Illinois encourages dealing with all of the divorce issues in a single proceeding, the appeals court in this case found that there were "appropriate circumstances" for a bifurcated divorce, as the law allowed. (750 Ill. Comp. Stat. 5/401((b) (2024); In re Marriage of Kenik, 536 N.E.2d 982 (Ill. Ct. App. 1989).)
• When you need immediate financial support. Pregnancy often involves extra expenses and concerns. You need to make sure you'll have health insurance and can cover any co-pays and other expenses for prenatal care. You might have medical complications that make it difficult to work full time—or at all. But you don't have to wait until your divorce is final to seek court orders dealing with these and other financial concerns. Once you file for divorce, you can ask the judge to issue temporary orders on issues like alimony (spousal support), maintaining health insurance coverage, payment of certain bills, and who gets to stay in the family home.
• When you need to take out a loan. It's common in divorces for the court to issue temporary restraining orders that are aimed at preventing one spouse from taking certain unilateral actions that would affect the couple's finances before their property is divided in the divorce, such as taking out a loan or selling marital assets. So, for instance, you might not be able to buy a new car without your spouse's consent or the judge's approval until the divorce is final and those temporary orders have been lifted.
• When there's been domestic violence in the marriage. Pregnant women who are experiencing domestic abuse have strong reasons for getting out of their marriage as soon as possible. If you're in this situation, you don't have to stay trapped in your relationship even if a local judge is unlikely to finalize a divorce until after the child is born. You can—and should—get a temporary protective order to keep your abuser away from you. You can find help through the National Domestic Violence Hotline, including information about local shelters and legal assistance. Learn more about resources for domestic violence victims and protecting yourself when leaving an abusive relationship.

Next Steps When Facing Divorce While Pregnant

As should be clear by now, pregnancy can complicate the divorce process. When you're facing the end of your marriage while you or your spouse is pregnant, you should at least speak with a lawyer. An experienced, local family law attorney can explain how the laws in your state and the court practices in your area are likely to affect your case. A lawyer can also help you get temporary orders to deal with pregnancy-related issues during the divorce.

In the meantime, you and your spouse can start trying to agree a parenting plan (either on your own, through mediation, or with the help of your lawyers). Even if a judge won't make your agreement part of an official court order until after the birth, it can speed things up when you've worked out the details ahead of time. Also, if you expect a custody dispute down the line, this is the time for fathers (or same-sex spouses who aren't the pregnant one) to establish their commitment to parenting—such as by contributing to prenatal expenses and accompanying the mother to doctor's appointments—which could affect the judge's later custody decisions.