In 2024, it might seem like a strange question about divorce and pregnancy, but in some states, the answer is not as clear cut.
The issue of divorce & pregnancy was turned into a viral social media discussion recently, where a woman living in Missouri was shocked to learn that she could not get a divorce until after her baby was born. This discovery and the public fallout led to a Missouri state legislator to introduce a bill to overturn the law that was passed in 1973, and the debate is still ongoing.
What States Allow Divorce While Pregnant?
Of the 50 states, most allow a divorce to be finalized while one of the spouses is pregnant. There are 4 that have active legal bans in place and one that does not have a legislative ban, but judges tend to follow precedent and wait until the child is born to finalize the divorce.
Missouri, Arkansas and Texas all have laws on the books that prevent a divorce from being finalized until after a pregnancy is brought to term. While the laws seem archaic in nature, those states require a determination of paternity after a baby is born before child-related orders, such as child support and custody, will be issued. Arizona courts tend to follow a similar decision process, but do not have any statutes that prevent a divorce from being finalized during a pregnancy.
Other states, such as Arkansas, Alabama, Delaware, Hawaii, Indiana, Maine, Mississippi, Nebraska, South Dakota, and Wyoming also do NOT have laws preventing a divorce from being finalized during pregnancy, but in over 85% of cases filed in the past 10 years, have refused to finalize the divorce of a married couple during a pregnancy.
Paternity Is A Core Issue
Most of the states in question require paternity to be established after the child is born so matters of child custody and child support can be handled. In Arkansas, however, a woman’s husband is assumed to be the child’s father by law, and if that is not the case, the assumption has to be challenged in court before a divorce is finalized.
As the lawmaker in Missouri who challenged their 1973 law put it: “…pregnancy should not be a barrier to leaving a marriage. I’ve heard far too many stories of domestic violence and infidelity that resulted in an irreparable marriage where the couple was simply unable to divorce due to our existing statute. Whether we’re talking about a woman facing emotional abuse, physical abuse, or reproductive coercion, or a service member deployed overseas whose spouse is unfaithful resulting in a pregnancy—Missourians deserve to have the option to walk away, legally.”
Texas also has laws on the books that deal with paternity and divorce. If the husband is the father of the child, orders for custody and support must be included in the final decree of divorce. If he’s not, paternity must be established after the baby is born. Even California has laws on the books that require paternity be established before a divorce is final. However, the state’s 6 month waiting period also covers most of a pregnancy term, for what it’s worth.
It is also worth noting that while a divorce cannot be finalized in these states, a divorce case can be filed and many steps in the process can be taken while a woman is pregnant.
Can a Divorce Be Finalized in Michigan When a Wife is Pregnant?
Michigan has no such laws preventing a divorce being finalized while a woman is pregnant, however, there is a mandatory waiting period, which can be determined by the judge in your case. If there are questions surrounding paternity, a judge my decide to wait until paternity is established before finalizing your divorce. However, in cases of abusive marriages, this may end up being waived.