Can I get a divorce while pregnant?
Getting a divorce while pregnant happens more often than you’d think. A couple is ready to get a divorce. They separate and file for divorce. But either before or during the divorce proceeding, the wife learns she’s pregnant.
The biology doesn’t need an explanation. Sometimes the child’s father is the wife’s husband. Sometimes it’s not. In our experience, father of the child is not the husband, more often than not. Time doesn’t matter, either. Let’s say that a couple separated 2 years ago. They never spent another night together after separating. Both spouses move on, and find new partners. The wife learns she’s pregnant with her boyfriend’s child. This will still affect your case
Why does it matter if I get a divorce while pregnant?
When divorces involve children, there are other things judges consider. They don’t only divide property. Judges want to make sure that parents take care of their children. This is especially true when parents are getting a divorce while pregnant. If the child is the husband’s, the judge will order child support for that person. If the child is not the husband’s, then the judge will make a court order that the husband isn’t the father. This will relieve the husband from paying child support for a child that’s not his.
We’ll explain what happens when you file for a divorce while pregnant below
Situation 1: Getting a divorce while pregnant when father IS NOT the husband
Something’s implied when your husband is not the father of the child. It means that your husband may have fault grounds for a divorce based on adultery. There is a difference between “fault divorces” and “no-fault divorces.” When someone is “at fault” for a divorce, it affects their side of property division. It also can affect whether you can get alimony. This situation can hurt the wife’s case.
The second implication is that the law presumes the unborn child is the husband’s. This means the husband may be on the hook for child support. That is, unless the judge does something.
That’s where “delegitimization” comes in. It’s an ugly term that serves an important purpose. If the husband is the presumed father of the child, he must pay child support. But it’s not fair to the father to pay to support a child that isn’t his.
But through delegitimization, the judge clears the husband of a child support obligation. This means someone has the responsibility of supporting the child.
Situation 2: Getting a divorce while pregnant when the husband IS the father
This situation is simpler. Here, the judge treats the unborn child as if it were already born. The law already presumes that the husband is the child’s father. So, there is no need to delegitimize the child.
Here, the child support payment will include the unborn child after the birth. The amount of child support will depend on which parent will have custody. But it’s hard to guess how much it will cost to support a new child. Either party can ask the court to increase (or decrease) the child support payment after the child is born.
But the husband could also contest paternity, and claim the unborn child isn’t his. Then, the parties will have to wait until the child is born. The judge will then order a DNA test to determine who fathered the child.
Do I have to wait until the child is born before getting the divorce?
It depends on the judge. There is no legal rule set in stone on this issue in South Carolina. Generally: if
both spouses agree to a divorce,
the biological father acknowledges paternity, and
the husband is willing to waive his rights to paternity
Then the judge will grant the divorce and delegitimize the child (if needed) before birth. Some judges, though, insist on waiting until the child is born.
But this is impossible if the husband contests paternity of the child. In that case, you’ll have to wait until the child is born. Then, the judge will order a DNA test for the child to determine paternity. Next, the judge will set or approve an amount for child support. Finally, the divorce can go through.
If I file for divorce while pregnant, will my divorce take longer?
Yes. And it will cost more. No matter what, you will now need a Guardian ad Litem (GAL) appointed by the court to represent the unborn child. The GAL has to investigate whether delegitimization is in the child’s best interests. It takes time for judges to appoint a GAL. It also takes time (and money)for the GAL to conduct the investigation. The GAL then also has to be present at the final hearing to make their recommendations to the court.
Can’t I choose to not tell the judge?
No. When you file for divorce, a required disclosure is whether you are pregnant. Later, when a judge approves the divorce, you will have to tell the judge you’re not pregnant. This happens under oath. Lying under oath is perjury. It may risk any of the orders in the divorce later getting reversed. And, if you have an attorney, the attorney won’t lie to the court on your behalf. Honesty is the best policy. And, it’s cheaper in the long run.
Can we get divorced and delegitimize the child later?
In theory, yes. But it won’t make the issue go away. The ex-husband is the presumed father. This means that until you delegitimize the child, the ex-husband is on the hook for child support. The delegitimization will take another filing fee, more attorney fees, and more time. It also depends on whether the judge will allow you to split these two legal issues. Some will, some will not. So, it’s best to handle both issues in one fell swoop.
What if the divorce is uncontested?
This is often the best case scenario for this type of situation. If all parties are on the same page, it can speed up the process.
But a word of warning: Uncontested divorces sometimes turn into contested divorces. This is especially true a divorce involves money and children. Having a lawyer help you can smooth out these problems, and help both parties find a good outcome.
What if we already got divorced and found out later about the pregnancy?
If the wife conceives before the divorce is final, then the child is the ex-husband’s. Again, this leaves the ex husband on the hook for child support. This prompts the delegitimization process as described above.
How do you delegitimize a child in South Carolina?
Delegitmization is a difficult process. It is a paternity case within a divorce case.
First, both the husband and the child’s father must both be parties. This is odd to a lot of people. When you get a divorce, you would think that only the spouses would be the parties. But where a delegitimization is necessary, the child’s father needs to be added to the divorce. This makes things easier down the road for the mother. The judge can order the unborn child’s father to pay child support once the child is born.
Once the unborn child’s father becomes a party, the judge will appoint a GAL.
If the father of the child doesn’t contest paternity, paternity is established. If he does contest paternity, the judge will order a DNA test when the child is born.
Do I need a lawyer for this?
Delegitimizing a child is not a simple procedure. Hiring an attorney will take out the guesswork for you. Hiring the Maron Law Group will save you time and money in the end. Certain cases in family court are designed for self-represented parties. This is not one of them. Contact the Maron Law Group today for your free consultation at (843) 998-0644. Out expert attorneys will guide you through this complex process. We will work to get you the result you deserve.