What if My Wife is Pregnant During Our Divorce?

Divorce and family law books behind a gavel with two gold wedding bands

One of the many questions you will be asked during your initial divorce consultation with your Orlando Divorce Attorney is if you or your spouse share any children or if you or your spouse is currently pregnant. Unfortunately, if you or your spouse is pregnant when attempting to pursue a divorce, you may face delays in your final divorce decree. Discuss your specific situation with your Orlando Divorce Attorney to determine the necessary steps to be taken in your proceedings.

Whether you are the biological father of the unborn child or not, the difficulty you will encounter is the predetermined paternity of the child under Florida law. In the State of Florida, Florida Statute 382.013 provides “if the mother is married at the time of [her child’s] birth, the name of… [her] husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” Therefore, when a married woman gives birth to a child, the husband of the mother is automatically presumed to be the legal father. The public policy behind this statute is to avoid the number of illegitimate children that would seek support from the state and therefore, the court will require the divorce be postponed until the birth of the child for paternity purposes.

However, there are methods in which you may still proceed with a divorce even while your spouse is pregnant. The first key point is that the pregnancy must be revealed to the court in the initial petition for divorce or answer by the second spouse. With a pregnancy, the court will likely pursue the divorce matter rather slowly as an entry of final divorce cannot be made until the birth of the child. However, if the child is your biological child, you may desire to complete all other issues surrounding your divorce such as property distribution, or alimony awards during the time before the birth of the child. This can be accomplished through negotiations between the attorneys or formal mediations. However, the divorce will not be finalized until the birth of the child, when a parenting plan and child support order may be entered.

Another noteworthy element to a divorce involving a pregnancy is the parenting plan. This parenting plan may look slightly different as it may need to contain a great deal of details regarding a newborn’s needs. For instance, newborns typically need to spend a majority of the time with their mother to form an attachment, and if breastfeeding, to eat. However, it is also crucial to have time for the father to also bond in these formative time periods with the child. So coparenting is crucial during the early stages of the child’s life. However, the parenting plan can also designate a time in the child’s life when more equal time can be split between the father and mother. However, these changes will need to be clear and direct. Any vagueness can lead to another court battle regarding the proper timesharing between the parties.

Further, if you suspect that you or your spouse is not the biological father of the child, you may have a DNA test completed, or an affidavit of paternity signed by the biological father, acknowledging his rights and responsibilities for the child. If the court determines that the spouse is not the father of the unborn child, a divorce may be granted prior to the birth of the child.

If you or your spouse is pregnant, but you still wish to proceed with a divorce, contact an Orlando Divorce Attorney today to ensure your rights are protected and your case is handled efficiently under the unique circumstances.

Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.

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