Question Sparks More Questions: Can You Get a Divorce while You’re Pregnant?
Can you get a divorce while pregnant? “It’s a national question mark. A gray area that isn’t mentioned until it becomes an issue. There’s no clear-cut area of the law,” said Alan Kopit, practicing lawyer and Legal Editor for Lawyers.com. “It depends on where you live as to whether you can get divorce if you’re pregnant. It’s a very important issue, and I think states are struggling with it.”
Lawyer and Webmaster of Divorceinfo.com, Lee Borden says the question appears on his discussion board every few months. “It’s one of those things that can be totally consuming when it is an issue,” said Borden.
For expecting mother Amanda Fox, 25, the issue has been very real and very frustrating. She first found out about the impossibility of getting divorced while pregnant in her state of Arizona while researching Web sites and filling out paperwork. I was disturbed because I didn’t know that you couldn’t get a divorce while pregnant. Nor have I ever known anyone in that situation,” Fox said. Once I found out that I wasn’t ‘allowed’ to get a divorce, I just pushed it to the back of my mind,” explained Fox. I put the blame to myself because now I can’t get a divorce.”
Licensed Marriage and Family Therapist and author of the self-help system PerfectlyPositive.com, Gail Thoen has counseled many couples and individuals in situations similar to Fox’s over the course of 20 years. “In every life there are predictable and not predictable events and. . . a person has to make choices,” said Thoen.
“Divorce is a life-altering event that creates a critical transition point in a person’s life. For example, you file for divorce, it’s in the court, and you find out you’re pregnant–there’s no turning back. This is a critical change in the respondent’s life and in the whole family system.”
“Thoen emphasizes that feeling guilty or blaming yourself is unnecessary because there’s no way to change the past. The appropriate thing to do is plan for the future in a responsible way. No blame, no shame,” Thoen says. “You’re welcoming a new baby into the world and that’s a joyful situation, you welcome new life and bring this baby into a loving environment. You did the best you could under difficult circumstances.”
However, even after the baby is born and the divorce is final, the emotional work is far from over. Most people don’t dream of getting a divorce and pregnant by another man. “There has to be appropriate grieving and [her] main job is taking care of herself and this baby,” Thoen says. “It is the death of a dream and the beginning of a new dream. You have to put it to rest and move on.”
Additionally, there are many legal issues such as property and finances that can be taken care of prior to the due date. “When you go into court with papers in hand,” Kopit says, “any issues that can be resolved beforehand would be so helpful because they have to get resolved anyway.”
Both Thoen and Kopit agree that getting sound advice from qualified professionals is the first step toward healing. Kopit says one of the most important factors in this situation is that the people involved are sure they want to get a divorce, and have the right legal advisors to help. “It’s steeped out in emotion. You then need to find competent counsel, wherever you live, who can advise you on the circumstances of your state.”
To get information, Kopit recommends researching your state’s legal websites and seeking help from a domestic relations lawyer who might be able to give preliminary advice and help with the divorce process later on. “If you’re pregnant and you’re trying to do a divorce on your own you’re really making a huge mistake. Anytime you have children, you really should be using a lawyer,” says Kopit. “These are not issues that are easily resolved and you want to make sure you’re resolving them the right way. After all, there are lives at stake and you want to make sure you’re not messing them up.”
Even in a state like Alabama that permits divorce during pregnancy, Borden says it’s not always a good idea. Couples pay divorce fees while the wife is pregnant to start the process and once the child is here, healthy and has a social security number might have to pay the same amount or more for modification filing fees. Emotional deadlines are usually the most important to those wanting a divorce in most of Borden’s cases. “It’s not a legal or financial challenge, it’s an emotional challenge. I can respect that, I just need people to understand they will pay extra to do that.”
In the case of Fox and her unborn baby, the emotional deadline was there, but financial hardship and uncontrollable circumstances delayed her plans. When it came time to fill out the divorce papers, she had to check the wife is pregnant box and found out she would have to wait until her baby was born to finish filing. “It’s affected my relationships,” said Fox. “We both feel like we can’t move forward until that chapter of the book is closed. So it’s almost like we’re at a standstill,” Fox said. “I understand why there has to be a law but I don’t think they should give women no choice.”
In some cases, Borden says, even when both the husband and wife know the husband is not the father it is not necessary to rush to get divorced. In many cases, allowing the wife to remain on the husband’s health insurance through the course of the pregnancy can lessen the financial burden to the mother as well as keep things stabilized until the baby arrives.
Being an expectant mother is a hard job. “If there’s anything mom can do to stay healthy and sane, that’s money in the bank,” says Borden. “If you are a husband of a woman who is giving birth to a child who is not yours, have a measure of compassion and give her a break. You may know it’s not your child, but that doesn’t mean you hate the child. Give her some space, let her be healthy and take care of the child and then get the ball rolling on the divorce.”
ABOUT THE LAW:
Since 2005, there’s been little media coverage on the issue of divorce during pregnancy. A woman was denied a divorce in Washington state when the judge discovered she was pregnant. However, the law was changed later that year after much outcry because the husband was abusive.
“Every judge looks at these situations differently,” said Alan Kopit, Legal Editor for Lawyers.com. “Just hope they’re looking at the totality of the situation.” Kopit says that it also depends on whether the husband is the father of the child. “Either party has the right to file for divorce, the effect of that filing may be determined by who the father is. The case gets litigated and you see how things work out.” In some states like Georgia and Mississippi, the wife being pregnant without the husband’s knowledge is grounds for a divorce.
Ohio Independent Paralegal Erik Smith explains that in his state there’s no law that says you can’t get a divorce while pregnant. “Rather, the courts simply have had a longstanding policy due to the child being unaccounted for — as well as paternity issues and child support, custody, etc., being unresolved — if the divorce is ordered before the child is actually born.” In theory this prevents people from returning with unresolved issues.
In some states, you can get the divorce but the baby is considered the legal husband’s even if they get divorced. You might know the legal husband is not the father and in some states they’re responsible for paternity. “It’s a huge stressor,” said therapist Gail Thoen. “Seek therapy from licensed marriage and family therapists. Seek guidance, seek competent legal advice. Friends are helpful as a sounding board but we always recommend to get competent help.”
“If I were poor, and pregnant and needed to get a divorce I would spend a good bit of my time before I would spend money to pay a lawyer to tell me the answer,” said lawyer Lee Borden. “There’s a great deal of Free legal advice out there, available on the web. Just have to be adept at using search engines.”
For more legal forms and other important information, visit your state legislature or bar association Web site.
ON THE WEB:
American Association for Marriage and Family Therapy
About the author: Jennifer Ballesteros is a journalist with more than 10 years experience in regional newspaper and national magazine writing for publications in Arizona, California and Washington D.C. She can be reached at