Divorce during pregnancy presents unique legal complications in California that couples filing during pregnancy need to understand. While nothing prevents a spouse from filing for divorce while pregnant, the family court cannot finalize all issues until after the child is born — particularly those relating to the unborn child's paternity, custody, and support. Understanding what can and cannot be resolved during the pregnancy, and what happens after the birth, helps expectant parents plan the divorce process effectively.
Can You File for Divorce While Pregnant in California?
Yes. Pregnant divorce filings are fully permitted in California — a spouse can file a Petition for Dissolution of Marriage at any point during a pregnancy. The California six-month waiting period begins running from service of the petition regardless of the pregnancy. What changes is what the court can finalize before the child is born.
Paternity and the Unborn Child
California Family Code section 7540 provides that a child born during a marriage is presumed to be the child of the marriage. When a divorce is filed during pregnancy, the unborn child's legal parentage is presumed to be that of the married couple. If there is any question about paternity — whether the child is the husband's biological child — that issue must be resolved either by agreement between the parties or by genetic testing after the birth.
A pregnancy during divorce where the husband is not the biological father requires a formal paternity determination. The husband may rebut the marital presumption by filing a timely action. Alternatively, if both parties agree the husband is not the father, that agreement can be addressed in the divorce proceedings with appropriate declarations.
Custody and Support for the Unborn Child
California courts cannot make custody, visitation, or child support orders for an unborn child — these issues must wait until after the birth. When a spouse is filing for divorce while pregnant, the divorce proceedings can address all other issues (property division, spousal support, other children's custody) but the custody and support for the expected child are deferred. After the birth, either party can file a Request for Order to establish custody, visitation, and child support for the newborn.
If the divorce judgment is entered before the birth and the expected child is not addressed, the parties can return to court post-birth to establish orders. The birth of the child may also affect child support calculations for the couple's other children if child support was already ordered, since a new child creates an additional financial obligation that the guideline formula accounts for.
Health Insurance During Divorce While Pregnant
Divorce while pregnant California cases often involve urgent health insurance concerns. The automatic temporary restraining orders (ATROs) that take effect when the divorce is filed prohibit either spouse from canceling the other's health insurance during the proceedings. This protects the pregnant spouse's coverage during the pregnancy and through delivery. The divorce judgment should address what happens to health insurance coverage for both the new child and the former spouse after the divorce is final.
Furubotten Law, APC handles divorce proceedings involving pregnancy throughout Orange County and Riverside County. Call (714) 795-3862 for a complimentary case evaluation to understand your specific legal situation.