What to Expect When You are Pregnant (and Divorcing)
April 27th, 2023
Pregnancy is a time of new beginnings. So, in its own way, is divorce. But when you are navigating both pregnancy and divorce at once, you face some unique challenges. Divorcing while pregnant can be difficult on both a personal and a legal level, so it’s important to understand some of the issues you are likely to encounter.
Can You Get a Divorce When You’re Pregnant?
In 2022, a viral tweet alleged that pregnant women in Missouri cannot legally get a divorce. While not technically true—women in that state may file for and be granted a divorce while pregnant—a judge can reserve the right not to finalize a divorce until after the child is born, purportedly so that custody issues can be decided at the same time as the divorce.
However, no state actually has a law that forbids a pregnant person from being granted a divorce. In Minnesota, expectant parents can divorce just like anybody else—but there are a few things to understand about how pregnancy is treated in a Minnesota divorce.
Pregnancy and Divorce in Minnesota
In Minnesota, as in most states, children born to a woman during a marriage are presumed to be the legal children of the woman and her spouse. That also applies to a pregnancy; a child born within 280 days of a divorce is legally presumed to be the child of the mother’s ex-spouse. That makes sense; there are many reasons that someone might divorce a spouse while pregnant with their child. Some couples attempt pregnancy to try to save a struggling marriage; that tactic often fails.
However, it is also possible that a married woman might be pregnant with the child of a man who is not her husband. What happens then? It depends on how certain everyone involved is about the child’s parentage, and what they want to do about it.
If the husband and wife both know that the husband is not the biological father of the child with which his wife is pregnant, the spouses can overcome the presumption of paternity by signing an agreement acknowledging that the husband is not the father of the child.
If it is unclear whether the husband is the biological father of his wife’s child, or parentage is disputed, the court may order genetic testing after the child is born. One option for dealing with uncertainty about a child’s parentage is for the court to appoint a Guardian ad Litem and to defer determinations about paternity, child custody, and child support until after the child is born.
Child Custody After You Divorce During Pregnancy
Assuming that the divorcing couple are the biological parents of the child with which the woman is pregnant, how does child custody and parenting time work? In Minnesota, child custody is determined by considering the best interest of the child, regardless of the child’s age. Minnesota, like other states, has a list of “best interest” factors that the court must consider when deciding custody. Those factors do not automatically favor a mother or a father. However, the court does consider which parent is the primary caretaker, as well as any other relevant factors.
With a newborn who is breastfeeding every couple of hours, the best interest factors could favor a nursing mother in a custody determination. However, courts would also likely try to create an opportunity for the child and father to spend more time together. That could potentially include ordering the mother to pump breastmilk at some point so that the father could feed the child. There is a case in Virginia where the court ordered a mother to stop breastfeeding because it interfered with the father’s parenting time with the six month old child. Luckily, we no of no such case in Minnesota.
Same-Sex Couples, Pregnancy, and Divorce
While it may be logical to assume that a man is the biological father of his wife’s child, the same is obviously not true about same-sex couples. The Minnesota presumption of parentage law references the husband of a pregnant woman. However, the rules of legal construction (how laws are interpreted) require gender-specific terms (like “husband”) to be construed in a neutral way (like “spouse”) when necessary to implement the rights of parents in a same-sex civil marriage.
What does that mean for the non-biological parent in a same-sex couple? It should mean that they are presumed to be the legal parent of the child with which their spouse is pregnant. However, there is not a lot of case law precedent. And while the presumption of parentage law might be used to presume that a woman’s (same-sex) spouse is the legal parent of her child, it’s unclear what would happen when the same-sex couple is male. What if two men decide to conceive a child using a surrogate and then decide to divorce while the surrogate is pregnant? In that case, the pregnant person is not the spouse in the divorcing couple. There are currently no cases around that issue to determine how the courts would rule.
If you and your same-sex spouse decide to conceive a child using some form of assisted reproductive technology (ART), you should consult a family law attorney to do everything possible to protect both of your parental rights in a variety of scenarios.
The bottom line is that divorcing while pregnant, or while your partner is pregnant, can be more stressful than divorce or pregnancy on its own. Make sure you have a solid support system around you, including an experienced legal team. Divorcing without legal counsel is rarely a good idea, but having a skilled attorney is critical if you are divorcing while pregnant.
To learn more about your rights and your options for getting a divorce when pregnant, contact Mundahl Law at 763-575-7930 to schedule a consultation.
Categories: Divorce, Family Law