Can I Get a Divorce If I'm Pregnant? | Divorce & Family Legal

Divorce while pregnant might complicate legal matters, but it doesn't prevent a spouse from filing for divorce or moving a case forward through the court system. While pregnancy can affect how and when judges issue an order, it doesn't eliminate the right to end a marriage.

Understanding how New York law handles this situation is essential for anyone navigating these circumstances. While the law does not prohibit filing or finalizing a divorce during pregnancy, courts often take a cautious approach to ensure that all matters involving the unborn child can be properly addressed once the baby is born. This is why it's important to seek qualified legal counsel.

Can I Get a Divorce If I'm Pregnant?

In New York, like many states, a pregnant spouse has the same legal rights as any other party in a marriage. They can apply for a divorce if the marriage has been irretrievably broken for at least six months.

As a matter of fact, either spouse may initiate the divorce regardless of pregnancy status. However, it's important to note that the court may later address child-related issues after birth.

Does New York Prohibit Divorce While Pregnant?

There are five states that prohibit divorce if a spouse is pregnant, including Arkansas, California, Missouri, Texas, and Arizona. That's not the case with New York. The state law allows a divorce case to proceed in court without waiting for the child to be born.

Several other states have statutes or longstanding practices that delay court proceedings until after the child is born. This is because the courts in most states want to wait to issue a final divorce to resolve custody, support, and paternity issues for the child born.

For example, the Indiana Supreme Court has advised many times, in cases involving unresolved paternity issues, to delay the divorce while the wife is pregnant.

On the other hand, New York allows spouses to file the Summons and Complaint, immediately expediting the divorce process.

Why Do Some Courts Wait Until After the Baby is Born?

In several jurisdictions, many courts wait until the baby is born before moving forward with the divorce proceedings. This allows the judges to address any practical or legal concerns related to the birth of a child after the marriage ends.

There are several reasons why some courts halt divorce proceedings until the baby is born, including:

Legal Personhood

Since the child is not yet born and is not even considered a legal person, courts in several states cannot issue custody or support orders. This is why judges may wait until the child is born and has recognized legal rights.

Paternity Certainty

In cases where there is a dispute over who the father is, a court may halt divorce proceedings until the baby is born. This is so that they can confirm the paternity of the child before assigning lifelong financial and legal responsibilities.

The “Best Interests” Standard

Some arrangements require the judge to make decisions in the best interests of the child. However, this is often difficult to ascertain, as the child has not been born yet.

After the birth of the baby, the judge takes into consideration the child's needs, health, and relationship with each parent before determining custody and visitation rights. They will also take into consideration the relationship between the parents, such as if there was a restraining order placed on either during the pregnancy.

The Impact of Pregnancy on Divorce Proceedings in New York

While New York laws allow a spouse to file for divorce even if they're pregnant, their pregnancy can have an impact on the timeline and process of getting a divorce.

Procedural Delays

In New York, the judge may delay the final divorce to gain clarity over child-related matters, such as custody and child support. These are often addressed after the birth of the child.

Automatic Orders

A pregnancy during a divorce can prompt the other spouse to make some changes to their finances, insurance, or property. This can adversely impact the financial situation and life of the pregnant spouse.

To help maintain stability during divorce proceedings and ensure the protection of the pregnant spouse, New York law imposes automatic orders. These are temporary orders or restrictions placed on the spouses, preventing them from making major changes to their finances, insurance, and property.

Laws Regarding Health Insurance and Medical Care During a Divorce Involving Pregnancy

New York law prioritizes maintaining health insurance coverage and access to medical care in a divorce case involving pregnancy.

Automatic orders prevent either spouse from removing the other from a health insurance policy. At the same time, the court may issue a temporary order, requiring one spouse to pay for reasonable and necessary prenatal care, including:

• Doctor visits

• Hospital bills

• Other medical expenses related to the pregnancy

Laws Regarding Paternity Issues During a Divorce Involving Pregnancy

New York law presumes that the child of the pregnant woman is also the husband's child. However, in cases where the husband is not the biological father, they may need to challenge the presumption. The court may wait until the birth of the child before ordering DNA testing.

After DNA testing, the judge may also require an Order of Filiation that states who the biological father is, so that they can grant him visitation rights. The court may not make a decision regarding child support orders or custody arrangements until paternity is established. For more information, these divorce law firms in Albany NY may be able to help.

Financial Implications of a Divorce During Pregnancy

A divorce during pregnancy can have long-term financial implications on both spouses, especially when it comes to spousal support, marital assets, and shared responsibilities.

If the pregnant spouse earns less due to pregnancy-related limitations, the court may award them higher support payments. The judge may also consider the future needs of the custodial parent, including anticipated expenses for the new baby, when dividing property and assets.

New York Child Custody and Child Support Laws in a Divorce After Giving Birth

Under the law, the court must ensure the child's welfare and the parental rights of both spouses during the divorce process. Since New York follows the Child Support Standards Act (CSSA), child support would generally be equal to 17% of the noncustodial parent’s income for one child, up to the statutory income cap.

The court orders custody and visitation rights based on several factors, including:

• Each parent’s involvement during pregnancy and early infancy

• The financial stability of each parent

• Any history of domestic violence

How to Prepare for a Divorce While Pregnant

Here are a few things spouses need to ensure to protect themselves and the future child during and after the divorce proceedings:

• Maintain detailed records of medical bills, prenatal visits, and communications with the other spouse to support requests for temporary orders or financial support.

• Draft a parenting plan to help the court see a structured approach to parenting time.

• Ensure safe housing for the pregnant spouse to strengthen their position in the divorce proceedings.

How a Divorce Lawyer Can Help with a Divorce Involving Pregnancy

There are several ways a skilled family law attorney can help ensure the legal rights of the pregnant spouse and protect the child's best interests, besides answering questions like "Can I get child support before my divorce is final?" They include the following:

• File for temporary orders on issues related to payment of certain bills, alimony, and medical insurance coverage. Courts can also issue temporary orders on whether the mother gets to stay in the family home.

• Manage sensitive legal filings to establish or challenge paternity, protecting both the pregnant woman’s husband and the child's father if different.

• Reduce the emotional burden on the pregnant spouse by handling negotiations and the entire divorce process.

• Ensure that the final divorce decree accounts for future child support, childcare costs, and other financial obligations.

Pregnant While Facing Divorce? Contact Divorce & Family Legal to Protect Your Rights!

Navigating divorce issues while pregnant can be overwhelming. Fortunately, you don't have to face this challenging time alone. Divorce & Family Legal is ready to guide affected spouses across Albany and the rest of New York, protecting both their legal rights and the future of the child. Schedule a free consultation today!