It depends on where you live – pregnancy during divorce may become an issue in certain jurisdictions. Generally, pregnancy does not prevent one from filing for dissolution of marriage; however, in some jurisdictions, the Court may delay the entry of a judgment of dissolution of marriage (“JDOM”) until after the child is born. For example, in Kentucky, the Court may delay the entry of the JDOM until the pregnancy has terminated. Ky. Rev. Stat. Ann. § 403.150. Many judges will delay the entry of the JDOM to ensure that the child has a legal safety net at birth by having a legal father at the time of its birth, e.g. a putative father (this is where a man is deemed to be the father of a child born during his marriage to his wife). Reasons that some judges delay the entry of the JDOM include, but are not limited to the following: 1) to avoid multiple court actions that may involve parentage; 2) to protect parental rights; and 3) to protect rights in and to support.
In certain jurisdictions, delaying or denying the entry of a JDOM due to pregnancy is illegal. For example, in Washington state, a woman’s pregnancy cannot be the sole basis for denial or delay of entry of a JDOM or dissolution of a domestic partnership. Wash. Rev. Code Ann. § 26.09.030. This law was promulgated in 2005 after a judge in Spokane County, Washington, ruled that a 27-year old woman, Shawnna Hughes, could not get divorced because she was pregnant at the time. In re Marriage of Hughes, 04-3-00840-7 (Wash.Super. 2005).
Here in Illinois, where I practice, as in many other jurisdictions, parties cannot obtain a simplified divorce if the wife is pregnant by her husband. 750 ILCS 5/452.
Some jurisdictions will appoint a guardian ad litem (legal representative) for the unborn child during divorce proceedings to ensure that the unborn child’s best interest is represented. For example, in Wisconsin, legal representatives for unborn children are explicitly recognized. Wis. Stat. Ann. § 48.235.
Another factor that needs to be considered is whether your husband will cooperate with the dissolution of marriage if you are pregnant. If the husband questions paternity, he may delay the entry of a JDOM because paternity testing is generally conducted after the child is born due to high costs and potential health risks associated with prenatal genetic testing.
It is best to consult with a lawyer to determine the proper legal strategy to ensure a prompt and smooth process for both you and your unborn child.
This post was written by Thomas T. Field: Family Law Partner