Pregnancy and Legal Parentage Issues

A divorce can be filed even if a spouse is pregnant, although it may not be finalized until after the pregnancy has ended. Currently, three states—Arkansas, Missouri, and Texas—do not allow a divorce to be finalized while a spouse is pregnant. Even in states that do not have this rule, questions related to parentage, custody, parenting time, or child support may delay final approval of the divorce.

Most states apply a marital presumption, formerly known as a presumption of paternity. Under this rule, the person married to the biological mother at the time of conception, birth, or (in some states) within 300 days after the marriage ends, is considered a legal parent of the child. If someone other than a spouse is or may be the biological parent, the court may require paternity to be established. Sometimes this can be resolved through a birth certificate signed by the biological parent along with your state’s paternity affidavit or acknowledgment form. In other cases, DNA testing may be required.

The marital presumption is generally interpreted to apply to all marriages, regardless of the genders of the spouses. A non-biological, non-adoptive spouse may also be able to obtain a court order establishing their legal parentage, such as through second-parent adoption or a similar process available in their state.

As a practical matter, courts must be able to determine legal parentage before entering final orders concerning custody, parenting time, and support. This is why a pregnancy may delay the finalization of a divorce even though filing is allowed in every state.

How Pregnancy Is Treated on Divorce Forms

Many divorce petitions and complaints include a simple checkbox indicating whether either spouse is pregnant. Some also ask whether the other spouse is the biological parent. A few states automatically require the “with children” version of the divorce forms when a spouse is pregnant, even if there are no other minor children.

In states that prohibit finalizing a divorce during pregnancy, the case may remain open until after the child is born so the court can enter appropriate orders. In all other states, how the paperwork is handled depends on the court’s need to address parentage-related issues before granting the divorce.

Because pregnancy affects court paperwork differently depending on the jurisdiction, customers who have questions about how parentage may be established in their specific situation may wish to consult with a family law attorney.

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