Divorce During Pregnancy: The Legal Issues

Divorce is a highly emotional process for families, especially if children are involved. However, what happens if one of the spouses is pregnant during the divorce? What is the legal issue when you divorce during a pregnancy? Below we explain the legal issues that arise if one party is pregnant during a divorce.

Can You Get a Divorce During Pregnancy?

In many states, the legal issue when you divorce during pregnancy is whether a court will grant a divorce before the child is born. In Washington state, the answer is yes. A court cannot deny someone a divorce just because one of the spouses is pregnant. Thus, a Washington court can and should finalize a divorce even if one party is pregnant.

However, there are complicated legal issues that arise in a divorce during pregnancy. For example, what happens once the child is born if the divorce is final by then? An experienced family legal issues lawyer can help you devise ways to address these issues during the divorce.

Other Legal Issues for a Divorce During Pregnancy

Several complex legal issues arise if you file for divorce during pregnancy, such as the unborn child’s paternity, spousal support, child support, and custody. Because the legal issues are complicated, you should notify the court as soon as you know about the pregnancy.


If there is a question about paternity, your divorce may face some complications. Both parents owe duties to a child, including the duty to support the child. Thus, if paternity is in question, so too is whether the non-pregnant spouse will be responsible for child support.

In Washington, the law presumes that the pregnant person’s spouse is the child’s parent. In fact, the court will presume that a spouse is the parent if:

  • The child is born during a marriage or domestic partnership;
  • The child was born before the parents entered into a marriage or partnership, and the other parent agreed to be the parent; or
  • The child is born within 300 days of the dissolution of the marriage (or the death of the parent).

Thus, during a divorce, the court will presume that the pregnant person’s spouse is the parent unless the court hears evidence that overcomes this presumption. The non-pregnant spouse may do one of two things. They may agree that they are the parent, or they will dispute paternity. If they deny paternity, the court will start a paternity proceeding.

Spousal Support

Spousal support or maintenance is a financial payment that one spouse pays to another. Courts don’t always grant spousal support. But to make the determination, the court will look at several factors, including:

  • The income and financial resources of each spouse;
  • Whether one spouse needs time to get training or education;
  • The length of the marriage;
  • The standard of living established during the marriage;
  • Each spouse’s age, finances, physical and emotional health; and
  • The payee spouse’s ability to pay while still supporting themselves.

Many may not consider spousal support a legal issue when you divorce during pregnancy. However, consider the fact that the pregnant spouse’s ability to work may change after the child’s birth. The pregnant spouse’s income may be significantly different because they will need to take time off for the first few years of the child’s life. Even if they don’t stay at home to raise the child, they may have to take a lesser-paying, more accommodating, or they might just have to take repeated time off for child illness, etc. Thus, the pregnant spouse may ask for spousal support for the early period of the child’s life when they are unable to work.

Child Support

Child support is an amount that one parent pays another for the support of their shared children. To decide on child support, a court will look at several factors, including:

  • Custody of the children;
  • The children’s needs;
  • Healthcare costs;
  • Daycare; and
  • The income of both parents.

Even if both parents share equal custody, the court may still order child support if one parent’s income differs significantly from the other parent’s income.

How does a court decide on child support before the child is born? If paternity is established, or the non-pregnant spouse agrees to paternity, they will be responsible for child support after the child is born. However, if the child is not yet born, a court cannot issue a child support order until after the birth.

An experienced family legal issues attorney will help you take action during the divorce to reserve the issue of child support in the divorce proceeding. This means that, even though the divorce may be finalized, the parties can open the case again to set child support.

Child Custody

Typically, a court will decide the custody of shared children as a part of a divorce proceeding. Parents who are on good terms may agree to a co-parenting plan, or if they don’t agree, the court will decide on custody. The court makes this decision based on what it deems is in the best interest of the children. However, much like with child support, a court cannot issue a child custody order before the child is born. As with child support, your attorney will reserve the issue of the child’s custody in your divorce so that it can be decided after birth.

Once the child is born, the parents can agree to custody and devise a parenting plan.

Speak With Our Attorneys About Your Divorce During Pregnancy

Proceeding with a divorce during pregnancy can be complex. You need to track many legal issues, and things can quickly change. The skilled and compassionate lawyers at Bolan Law Group., are here to help you understand the nuances of divorce during pregnancy and fight for your rights throughout the process. We will explain the legal issues that arise when you file for divorce during pregnancy so that you fully understand our strategy. Contact us today for a consultation.

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