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The Issue of Divorce During Pregnancy

Published in Family Law on May 8, 2017.

Divorce Attorney Assisting Indianapolis Expecting Couples with Divorce Proceedings

sad pregnant woman and husbandDivorce can be emotionally devastating.

A divorce while in the middle of your pregnancy is much more challenging.

After the pregnancy is discovered, and you still wish to continue with the divorce, you have a few additional steps to consider before finalizing your settlement. Furthermore, it is in your best interest to speak with a family law attorney.

An attorney can address the custody and support issues that arise once the baby is born and ensure your child’s best interests are considered.

Dispelling the Myth: Yes, You Can Divorce While Pregnant

Some couples think that a judge would not grant a divorce if the wife were pregnant.

This is a misguided belief fueled by rumors, religion, and personal preferences. However, there is nothing about a pregnancy that makes your divorce unattainable in Indiana.

It is true that your pregnancy might complicate the issues of divorce, but it will not stop you from getting a divorce.

The courts may request that you return to court after the child is born to address the issue of custody, but the divorce portion can complete itself during pregnancy.

During the divorce, the matter of if the husband is the biological father, however, plays a role.

Issues and Requirements When Divorcing While Pregnant

It is your right to divorce, even if you are pregnant. However, there are specific issues and requirements you must meet to succeed with your divorce.

You Must Disclose the Pregnancy

Indiana’s petition for divorce requires disclosure if the wife is pregnant. This not only notifies the courts of a child but ensures that the husband is aware of the pregnancy. If the husband is the baby’s father, it will not affect the divorce process.

If, however, the husband is not the biological father of the child, there is no issue as long as the couple agrees to the paternity.

Not a Child of Marriage Status

If the child is not the biological child of the husband during a divorce, the courts will label the child as “not a child of marriage” and proceed with the divorce. The classification then absolves the husband of all child support, custody, and related issues. Also, it forfeits the husband’s parental rights to the unborn child in all forms.

Therefore, a husband who is unsure if the baby is his or not should request a paternity test before signing away his rights. Once the divorce is final, and the child is listed as not a child of marriage, the husband has no rights–regardless if he was the biological father.

The Presumption of Paternity in Marital Pregnancies

When a wife becomes pregnant during a marriage, there is a presumption of paternity in Indiana. That means the law assumes the husband is the biological father.

If the baby is born within 300 days or 10 months after the divorce, the presumption of paternity still applies. For some situations, this creates a dilemma, especially if the husband feels he is not the biological father.

Also, unless the biological father comes forward, the presumption of paternity still applies. That means an ex-husband could be liable for child support, child care expenses, and even health insurance for the child. Also, if the child has special needs that require the mother to remain home and care for the child full-time, then the ex-husband might be liable for spousal support in addition to child support.

Going Back to Court for Custody and Support-Related Issues

A divorce during pregnancy can finalize, but the courts will require that the couple return after the baby is born. This is because the original divorce settlement cannot address expenses that are non-existent, and the courts cannot establish support or visitation until the baby is born successfully.

Disproving the Assumption of Paternity

When the father suspects he is not the biological father, the courts still treat him as the biological father until they receive official notification otherwise–as long as the birth occurs within the 300-day window.

For fathers who wish to disprove the assumption, there are several options:

  • Stating Such in the Dissolution–In the dissolution of marriage, if the wife and husband agree the child is not from the marriage, the disproval of paternity can then be established in the dissolution.
  • Acknowledgment of Paternity—If the biological father is known, then the mother, husband, and biological father can sign an acknowledgment stating that the husband is not the biological father and the actual biological father absorbs responsibility of the child.
  • Parentage Request—When paternity is disputed, the wife or husband can file for parentage, which is where the courts must determine paternity. Once the court establishes the biological father, parenting plans and support arrangements are made and enforced.

When the Mother Wants to Disprove Paternity

Sometimes it is not the father disproving paternity; it is the mother. When a mother is married and knows that the husband is not the biological father, she can disprove paternity, but often must prove three components:

  • She did not live with her husband at the time the child was conceived;
  • She did not have sexual intercourse with her husband at the date of conception;
  • The husband never treated the child as his own or wishes to do so.

The Use of a Guardian ad Litem

The court may determine that the child, once born, needs a guardian ad litem (GAL). The courts appoint a GAL when they feel the child is not adequately represented, the child is born, and issues of parentage have been brought to the court.

The GAL then conducts his or her investigation and recommends to the court what they feel is in the child’s best interest. The GAL works solely for the child – not the parents. Sometimes the GAL is used to help disprove paternity of the father or to establish the biological father’s paternity. GAL fees are paid by the petitioner and respondent unless the court determines otherwise.

Divorcing While Pregnant? Consult a Family Attorney Immediately

The laws regarding pregnancy and divorce are highly involved. While we have outlined many of them here, it is still in your best interest to contact a family law attorney. Your attorney not only represents you during the divorce, but can assist with issues of parentage, child custody, and support.

Speak with an attorney from Eskew Law today by calling 317-974-0177 or request information about divorcing in Indiana online.

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