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Getting Divorced While Pregnant Isn’t Allowed In Some States — Seriously

If you’ve heard that pregnant people can’t finalize their divorce in certain states before giving birth, well, it’s not too far from the truth: Across the country, divorce courts are indeed dragging their feet on freeing pregnant people from unwanted marriages.

The good-ish news is that this isn’t exactly a matter of policy, just best practice, says Dale Margolin Cecka, assistant professor of law and director of the Family Violence Litigation Clinic at Albany Law School.

“No states have laws explicitly preventing someone from getting a divorce if they are pregnant,” she tells Scary Mommy. “Either spouse can file for a divorce and get the process started in all states, even if one party is pregnant.”

There is, however, truth to the idea that divorce courts can (and do) decide to hold off on finalizing divorces for those who are pregnant until after the baby is born.

Nevertheless, “the duration of a divorce proceeding is going to vary based on the couple, judge, state, and circumstance,” Cecka says. “It is always a court’s discretion whether to grant a final divorce.” And yep, this all goes for same-sex marriages where one partner has become pregnant via donated sperm, too.

Where is this happening?

Divorce courts often delay finalizing divorce when pregnancy is involved in states like Arizona, Arkansas, California, Florida, Mississippi, Missouri, and Texas.

Wait, wait, wait… how does divorce work?

Here’s Divorce 101 for the uninitiated, according to Cecka: You or your spouse file a petition — which must include whether you have children in or out of the womb — in the state where one of you has lived for at least six months.

There is always a waiting period before a divorce can be granted; most couples are looking at at least six months or more if there are children. During this period, whoever filed the petition delivers the paperwork to their partner in person, lest someone very awkwardly miss the memo. Some states also require parties to live separately before finalizing a divorce.

In uncontested divorces, where couples agree to all terms on custody, property, debt, and so forth, divorce can be finalized out of court. However, if either partner disagrees on any of the above, the divorce cannot be finalized until both parties agree or sort things out in court, where they’ll typically be asked to hand over financial documents and other personal stuff.

Property is either divided equally or based on what is determined to be “fair,” given what each party contributed to the marriage. Custody decisions are made using the “best interest of the child,” which is determined by statute or precedent depending on the state. Alimony, or spousal support, is sometimes doled out, but usually only in marriages of a significant length where there is great economic disparity between parties and one is able to pay.

A final divorce order must have absolutely all of the matters above addressed. Meaning? Even if you agree on, say, custody but can’t quite come to terms on how to divvy up your property, courts won’t finalize your divorce. “There is nothing that will get you a ‘quick’ divorce without following all of the procedures,” Cecka says.

In the meantime, courts can issue temporary orders for custody or child support, which expire upon official decree. After that, property rights are final, but custody and child support can be tweaked until a child turns 18.

Why do courts delay divorces when someone is pregnant?

Cecka tells Scary Mommy that divorce delays during pregnancy have nothing to do with limiting the rights of the pregnant person (phew, because hey, you never know). “Not granting final divorces during pregnancy has nothing to do with being able to make ‘sound’ decisions while pregnant,” she tells me.

In fact, the tendency for some divorce courts to drag their feet in finalizing separation can actually have protective benefits for the mother and child. All states assume that any child conceived during marriage is the biological child of the father or non-biological mother in same-sex couples. (The law presumes intent to parent on both sides and considers both same-sex parents to be legal guardians, according to Cecka.) Waiting until after birth to establish custodial rights and responsibilities, including child support, enables courts to dot their i’s and cross their t’s when signing and sealing a final divorce decree.

“The [other parent] will be required to financially support their child even if they are not seeing them,” Cecka points out. That’s because child support, Cecka tells me, is the right of the child — and a pretty surefire outcome both when one parent gets primary custody and in 50/50 physical custody situations where one parent makes less. “There are a few very rare exceptions to this, and courts do not want to sever this responsibility lightly, which would be the case if divorces were granted quickly in pregnancy cases.”

What’s more, some states don’t give courts the right to rule on matters pertaining to an unborn child. So, there’s that.

Can you just not mention you’re pregnant when filing for divorce?

No lawyer would advise it. “States require, as part of the initial petition or in the adjudication of evidence, that the spouses state whether the wife is pregnant,” Cecka says. “So, you can’t just avoid the subject. You would be committing perjury if you lied about being pregnant in court filings or testimony.”

Can a pregnant person simply separate from their spouse?

“A pregnant woman can always separate from her [spouse] if she is logistically able to do so,” Cecka says. “Nothing in any law prevents a party from physically separating from their spouse.” Bye boi, as the kids say?

In abusive situations where a casual separation won’t do the trick, pregnant women can petition family or juvenile court for a protective order that requires their spouse to leave the house and, in some cases, continue paying the rent or mortgage or whatnot.

At the end of the day, the tendency of courts to delay divorce until after a baby is born is meant to benefit mother and baby — not lock them into a bad situation.

Considering marital stressors like questions about paternity, financial stress, debilitating pregnancy symptoms, and hella fluctuating hormones, it’s no wonder more pregnant couples don’t try to call it quits before their due date. But reason suggests it’s worth waiting.

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