Divorce While Pregnant

Couples marry with the notion that their marriage will last for the rest of their lives. However, for thousands of spouses in Oregon, that is not the outcome. The decision to divorce, may come as a surprise to one or both spouses. A divorce can occur at any time during the marriage, even while the wife is pregnant. Going through a divorce while pregnant may involve difficulties, uncertainties, and postponement but the child has not been born. Oregon law does not prohibit a married couple from filing divorce while the wife is pregnant.

In a divorce proceeding, a determination of child custody and child support must be set for the children of the marriage. One parent may have sole custody or both parents may share joint custody of their children. A court can only order joint custody if both parents agree to it. There are two types of child custody – physical and legal custody. Physical custody refers to the where the child will reside. When one or both parents have legal custody, they have the legal right to make decision for the child regarding healthcare, religious practice, education, and extracurricular activities.

In most child custody issues that occur during a divorce, the child or children of the divorcing spouse are already born. Under Oregon law, the husband is presumed to be the father of child that are born during the marriage. However, circumstances may arise in which the wife is pregnant during the divorce process. Even though the child has not been born yet, the pregnancy occurred during the marriage, which gives the presumption of the husband being the father of the child. The parentage of a person is rebuttably presumed if:

  • The father is married to the birth mother at time of child is born and the spouses are not legally separated; or
  • The father is married to the birth mother and the child is born within 300 days after dissolution of the marriage

If paternity is questioned, the one or both spouse may petition the court during the divorce case for a establishment of paternity. The court may recognizes who the father of the child is in several ways, such as:

  • Married to the mother of the child at the time of birth
  • Court judgment establishing paternity
  • Adoption of the child
  • Voluntary acknowledgment of paternity filed with the Oregon Registrar of the Center for Health Statistics

When the wife is pregnant during the divorce, it may postpone the court’s ruling on child custody and support for the unborn child until birth. The court must still determine what is in the best interest of the child regarding custody, support, and parenting time with the noncustodial parent. The mother and father of a child have same the right to the be the custodial parent. Neither parent has priority under the law. They each have the same responsibility to the child to provide, financial support, care, concern, guidance, shelter, nourishment, and protection.

The determination of child custody is based what is in the best interest of the child. The court looks several factors including,

  • The emotional ties between the child and other family members
  • The interest of the parents in and attitude toward the child
  • The desirability of continues an existing relationship
  • Preference of the primary caregiver of the child
  • Income of each parent
  • Lifestyle of each parent
  • Social environment of each parent

Many of these factors are cannot be assessed when the child is unborn. Neither parent had established a postpartum relationship or interaction with the child. While the financial and environmental factors can be weighed, the relationship factor may be dismissed or have to be revisited later to change the custody order.

Child support payments are financial paid by one parent to the other on regularly scheduled basis. The court sets forth the how long the paying parent is obligated to pay child support and in what forms. Child support can include healthcare and dental coverage in addition to money. The standard length time to pay child support is until the child turns eighteen years old, is legal emancipated, or gets married while still a minor. However, the paying parent may have to pay pursuant to the court order while the child attends postsecondary school, such as two-year college, four-year college, vocational school, or technical training

Once the child is born, during the divorce, the parents may need to return to the court to modify the child support and child custody orders. The needs of the child are determinable upon birth and make affect the amount of child support. The child custody can now be decided.

To schedule a consultation with one of our divorce lawyers in Oregon or SW Washington, call us now at 503.222.9116 or write us.

Andrew Newsom

Andrew Newsom

Andy is a partner at Gearing Rackner & McGrath. He has practiced family law exclusively since 2010 and is licensed to practice in Oregon. Andrew has high-level experience in all areas of family law. Although he is stimulated by trial advocacy, his first priority is to provide his clients with creative and efficient solutions without unneeded expense.

Get peace of mind with a personalized legal strategy.