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How Pregnancy Affects Divorce

This article was written by Hance Law Group principal Larry Hance.

Recently, there were two celebrity divorce revelations that made their way around the news. I usually only see or hear this type of news in passing and don’t think much of it. However, the stories – concerning Megan Fox and Drew Barrymore’s announcements that they were ending their respective marriages – were notable in that both actresses are pregnant. This got me thinking about how pregnancies impact divorce.

In Texas, the most profound effect pregnancy has on divorce is to delay it. Generally, courts won’t grant a divorce to a couple in the midst of a pregnancy. The main reason for that has to do with determining the father of the child, and that’s most commonly done through a DNA test once the baby is born.

There’s a possible exception to this if the couple stipulates that the husband is the father. But the court tends to favor doing a test, in order for the question of parentage to be definitively answered, and the court doesn’t want to force a DNA test on a pregnant woman and her still-developing baby-to-be. There is also, unfortunately, the rare chance of a complication that keeps the pregnancy from being completed to term or the baby being stillborn.

In short, the court waits until the baby is born, paternity can be assessed, and both divorcing parties know how many children should be factored in for child support and custody purposes.

Obviously, while the couple is still married and the pregnancy’s progressing, medical bills should be paid through community holdings. If the couple wants to negotiate divorce during the pregnancy, via the collaborative process, through pre-litigation mediation, or the “kitchen table” method, the couple’s ability to do so, up to the point where both parties are in agreement and ready to file the decree with the court, once the baby is born.

There’s a certain decorum that each party should follow, if the husband is indeed the father, to prevent rancor from affecting dealings between the parties. The wife should invite her husband to doctor appointments, provide a copy of sonogram photos, and at the time of the birth, invite him to the hospital. (The couple’s level of separation and how they’re getting along will help inform if the wife has her husband in the delivery room with her or keeps him out.) If the case does go to custody litigation, the court doesn’t like the mother shutting out the father.

The father-to-be in these cases also should show involvement and engagement should custody be called in question. This obviously includes providing for pregnancy expenses through community assets, and asking to go to appointments if not invited (but also not forcing the issue). If the couple’s already physically separated, the father-to-be should start preparing a room at his residence for the baby.

If the husband thinks that he’s not the father, he should still act as if he is until they’re able to make the determination that he’s not through a DNA paternity test. In Texas, there’s a presumption that if the wife in a marriage is pregnant, the husband is the father. It’s a rebuttable presumption, but it’s dependent on the results of a paternity test. If the husband makes the allegation, he has to submit to the test or the allegation will be discounted – though if the wife refuses to have her baby tested, the courts could see that as an admission that the husband is not the father.

In those cases, of course, child support would only be required for those children he biologically fathered, and custody schedules would only apply to his biological children. These types of family law matters can be very sensitive and require quite a bit of thought and expertise to make sure they are handled correctly and that a client has the best shot at the outcome he or she desires. Consulting with an experienced family law practitioner can keep either party from making mistakes that will literally last a lifetime.