Can You Divorce During Pregnancy?

Divorce can be a complex process, and it can become even more complicated when a pregnancy is involved. While a spouse is permitted to file for divorce during pregnancy in Utah, it’s crucial to understand that the issues of child custody and child support will still need to be addressed — these matters cannot be resolved until after the child is born. If you’re considering starting the divorce process while pregnant, it’s essential to have the guidance of a knowledgeable divorce and family law attorney who can protect your rights and advise you regarding your options.

Can You File for Divorce During Pregnancy?

There can be many reasons a spouse might want to file for divorce during pregnancy. For instance, if domestic violence or abuse was an issue in the marriage, it’s vital to ensure you and your child are out of harm’s way. Another reason to part ways during pregnancy may be irreconcilable differences about parenting philosophies. Or you may have learned that your spouse had an extramarital affair and you are not the biological father of the child. Regardless of the reason, there is nothing in Utah law that prevents a spouse from moving forward with a divorce action while a spouse is pregnant.

While a divorce can be finalized during pregnancy, there are still issues that will need to be determined. Depending on the complexity of the case, reaching a resolution regarding property division and spousal support can extend the legal process well beyond the length of a pregnancy. Notably, although you can divide your assets and resolve the issue of alimony, child custody and child support cannot be determined until the child has been born. If the divorce has not yet been finalized at the time of the child’s birth, you and your spouse can address these issues in the divorce decree. Otherwise, these matters can be determined in separate proceedings after divorce.

Establishing Paternity

In order for the issues of child custody and support to be determined, paternity must be established. In Utah, there is a presumption of paternity if a child was born while the parents are married or within 300 days after a marriage has been terminated by divorce. If there are questions about paternity during the divorce action, they will need to be addressed.

Paternity can be established in Utah in several ways, including:

• A DNA test — If a father denies paternity, the court can adjudicate the issue of the child’s parentage and order a DNA test.
• Administrative paternity order — Utah Office of Recovery Services (ORS) has the authority to establish paternity through genetic testing when a parent files for child support.
• Voluntary declaration of paternity — When both parents agree on the identity of the biological father, they can sign a voluntary declaration of paternity at the hospital, or later through the Utah Office of Vital Records.

In addition, a divorce decree can establish paternity when it identifies the husband as the child’s father. This is done by specifically using the phrase “child of the marriage” or “issue of the marriage.” Not only does paternity give a father certain legal rights, but it also allows the child access to government benefits through the father such as veterans’ benefits, health insurance, and Social Security, if applicable. A child would also have legal inheritance rights under Utah’s intestate law.

Resolving Child Support and Child Custody in Divorce During Pregnancy

The issues of child support and custody cannot be resolved in divorce during pregnancy. A court will not address these issues until after the child has been born. However, you can proceed with resolving the other matters that need to be resolved in divorce — such as property division and spousal support. If you are the mother, you can also request that the father pay half of your pregnancy expenses.

If the husband is the child’s biological father, he will have a legal obligation to financially support the child, regardless of marital status. Specifically, child support is calculated by using the gross monthly income of both parents and the number of overnights the child spends in each parent’s home. The issue of child custody is determined by applying the standard “the best interests of the child.”

The Biological Father’s Duty to Share Pregnancy Expenses

Under a Utah law passed in 2024, a biological father has a legal duty to share 50% of the mother’s pregnancy expenses. In the event paternity is disputed, the father is not required to pay until paternity has been established. Once paternity has been legally established, the father would be required to pay the mother back their share of the medical costs.

Alternatives to Litigation for Divorce During Pregnancy

Not every divorce needs to be litigated. Alternative dispute resolution methods, such as mediation and the collaborative divorce process, can allow you and your spouse to part ways amicably, cost-effectively, and efficiently. You can also remain in control of the outcome of your divorce and find creative solutions that might not otherwise be available in the courtroom. Although a judge will not issue a judgment that addresses child support and custody before the child is born, you can still negotiate these issues ahead of time and submit your settlement agreement to the judge once the child has arrived.

Contact an Experienced Utah Divorce and Family Law Attorney

If you are considering moving forward with a divorce during pregnancy, it’s important to have a divorce attorney who can provide the support you need and help you navigate the legal process. Based in Salt Lake City, BartonWood offers reliable representation and compassionate counsel to clients for a wide variety of divorce and family law issues.