Some couples find themselves facing the decision to divorce during pregnancy. Perhaps you face mounting tensions and the financial difficulties that come with the added responsibility of a child. Or maybe the paternity of the child is in question. No matter what the reason, it is essential to understand your rights and options as an expecting mother or father. Find out why couples choose to divorce while pregnant, the legal implications, and what you may want to consider before making any decisions.
Is it Legal to Divorce While Pregnant in North Carolina?
Most states allow divorce while pregnant, even though a few states have laws that do not permit divorce before a baby’s birth.
Divorce is legal while pregnant in North Carolina. The case of divorce during pregnancy is no different than any other divorce in North Carolina.
You may file for divorce as soon as you know you are pregnant or later. And, you can name your spouse as a defendant in your divorce suit. However, if your baby has already been born, you must settle custody or visitation arrangements before a divorce a judge will finalize a divorce case.
What Should I Consider Before Choosing Divorce While Pregnant?
Divorcing while pregnant does not have to mean a negative outcome for either parent or the unborn child; however, there are many aspects of divorce that you should consider before making any decisions.
A contested divorce can mean time consuming and stressful court proceedings. Contested divorces mean spending time in court, allowing a judge to give solutions for your marital issues related to the divorce decree.
An often more straightforward way to divorce is through an uncontested divorce. In this “easy” divorce, your attorney helps you and your spouse work through all separation and divorce issues and create an agreement. The judge then uses the agreement to grant an uncontested divorce.
Divorcing couples can reduce stress by filing for divorce with a settlement agreement already in place. Whether 4 months or 9 months pregnant, you can make agreements together that roll into your divorce decree.
What About Paternity Issues?
In some states, the courts will not grant a divorce before a child’s birth. However, it is possible not to know the biological father in North Carolina and get separated and divorced.
Before a child is born, your spouse may want to determine who the biological parent is and establish paternity. This type of testing is between you and your spouse.
Establishing paternity is a legitimate request from a possible legal parent. However, you can file a divorce petition and go through with a pregnant divorce before knowing who the child’s legal parent is.
State laws in North Carolina allow a child support order to come after a divorce. So you can wait until after the baby’s birth to consider a paternity test and handle filing for child support payments for financial support.
As a woman, having a baby presents unique challenges for you as you may feel overwhelmed before the baby is born and then exhausted once you have the child. As a man, you may want to know whether the baby is your child.
You have legal rights to what is in your child’s best interests, whether you are married or not.
How To Handle Child Support After the Birth
You can include child custody and child support provisions in a separation agreement.
However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest.
If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances. (1)
It makes sense for pregnant couples to consider the financial implications of divorce, such as child support or alimony payments.
A judge will want to see that you’ve settled your marital issues for an uncontested divorce. As a married couple, a judge will want to know your plans for any children, such as child support, custody, and visitation.
However, while you are pregnant with a child, divorce laws do not require a definite plan for the unborn baby.
What It’s Another Man’s Child
If you decide to get divorced while pregnant, it’s likely that there are significant struggles in your marriage.
Often, as a woman choosing divorce during pregnancy, you may realize the child is not your husband’s. If the father of your unborn baby is not your spouse, you will need to determine what form of custody or visitation rights either man may have after a court finalizes the divorce.
In North Carolina, as in many states, the law assumes that a man married to a woman when she conceives or gives birth is the father.
In North Carolina, the husband must convince a court that he is not the father to avoid paying child support. The presumed father can put forward genetic testing evidence to show he is not the biological father and shouldn’t have to pay child support.
If your spouse is set on divorce because the baby is another man’s child, you’ll likely not seek child support from him, but instead from the man responsible for helping create the child.
For example, let’s say your husband wants to disprove parentage after the baby is born. As a pregnant spouse considering divorce because the pregnancy is from another man, you may want to start looking for ways to claim child support from the biological father after the baby is born.
Applying for Child Support After Birth
You can apply for child support and back payments of child support up to 3 years after a child is born. Factors that can make seeking child support a complicated process include:
- Difficulty in locating the noncustodial parent
- Paternity establishment
- Multiple potential fathers
- Noncustodial parent lives in another state
Once Child Custody Services feels satisfied with the paternity establishment, they will issue an order for financial and or medical support, obtained either voluntarily or by court order. (2)
No matter your decision while pregnant, it is crucial to carefully consider the needs of both yourself and your unborn child. Seek professional legal advice from a divorce attorney specializing in cases involving divorce during pregnancy to protect your rights during separation and divorce.
The Divorce Process Begins With a One-Year Separation
When divorce is your best option, the divorce process in North Carolina begins with a one-year period of living separate and apart. During this time, couples must remain physically separated and cannot have sexual intercourse. So if you decide to divorce while pregnant, it is essential to factor in the gestation length into the divorce timeline.
Couples may divorce during pregnancy for many reasons and should always consider their rights and options before making any decisions. In North Carolina, divorce during pregnancy is treated no differently than any other divorce case but can seem more complex due to financial implications or custody arrangements.
If you are considering divorce during your pregnancy, seek professional legal advice from an experienced divorce attorney to ensure proper handling of all aspects of the divorce.
Considering Alternative Methods Over Divorce
Even if the baby is not your spouse’s, he may wish to claim the baby as his. Some men may want to stay married to a spouse carrying another man’s baby. Discussing the possibility with him makes sense if you want to stay married.
As long as he is not abusive to you or any other children, you may consider discussing with him about taking responsibility as the father, especially if you already have children together. (and the other man has no interest in claiming paternity)
However, if there is abuse in your marriage, whether emotional or physical, talk with someone you trust. You can call the National Domestic Violence Hotline at 1.800.799.SAFE (7233) for help or visit their site at thehotline.org to learn more about domestic violence.
You can also get in touch with the North Carolina Coalition Against Domestic Violence at their site NCCADV to find out your options and learn more about abuse and ways to handle an abusive situation in North Carolina.
Being pregnant does not mean you need to stay with a violent or threatening person. Find out how to stay safe today and take care of yourself and your unborn baby!
An Experienced Family Law Lawyer Can Help
At Plekan Law Firm, we understand that divorce proceedings can seem complex, especially when you have a baby on the way! Whether you’re a pregnant wife or a confused husband, talk with us about your options regarding divorce, child support, alimony, post-separation support, and other matters. Our divorce attorneys work with couples facing pregnancy and divorce to support you as you make the best decisions for your family.
Whether you decide contested or uncontested divorce is for you, we walk you through each step of the separation period and divorce in North Carolina until we reach your best outcome. Get in touch today and schedule a consultation to start finding the answers you need!