Can We Divorce Even if My Partner Is Pregnant?

What do Bridget Moynahan, Tiki Barbar, and Denise Richards have in common?  They (or their spouse) were all pregnant while going through a divorce.

Divorce is never easy.  Divorcing while pregnant adds another complication.  In some states it is not even possible to finalize the divorce while a party is pregnant.  However, in Massachusetts, although expecting parents are permitted to finalize a divorce, there are certain obstacles about which a divorcing, expecting parent should be aware.

1. There is a legal presumption that a child born to a woman during a marriage is the child of her spouse.

Pursuant to Massachusetts General Laws, Chapter 209(C), section 6, a man is presumed to be the father of a child if he is married to the mother at the time of birth of the child or if the child is born within 300 days after the marriage is terminated by death, annulment or divorce. (While the terms man and woman are contained in the statute, this law applies to same-sex couples, as well.) The husband’s name will automatically be placed on the birth certificate of the child, even if the husband is not the biological parent.  It then becomes the burden of the husband to overcome the presumption of parentage.

What if the husband is not the biological parent?

A spouse whose name automatically appears on the birth certificate due to marriage, but who is known not to be the biological parent, may seek to have his name removed from the child’s birth certificate.

In order to correct the birth certificate to name the biological father and not the husband, if they are not one and the same, the husband and wife need to complete an affidavit denying that the husband is the father of the child, provided that:

  • The mother and biological father have signed and filed an acknowledgment of paternity; or
  • There has been a judgment of paternity by a court that the father is in fact the biological parent and not the husband; or
  • There has been a judgment of nonpaternity by a court that the husband is not the father.

Suppose the wife/mother is unwilling to complete an affidavit denying the husband as the father, or the wife/mother and putative father (not the husband) are unwilling to sign and file an acknowledgment of paternity. In that case, it may be necessary for the husband to seek a judgment of nonpaternity.  While the husband does not have the standing to commence an action seeking a judgment of paternity that the putative father is in fact the biological parent of the child born to the wife during the marriage or 300 days thereafter, the wife can do so in order to seek financial support for the child if the husband is found not to be the father.

For same-sex couples going through a divorce while one of them is pregnant, Massachusetts does also apply the marital presumption. Both parents’ names will appear on the birth certificate depending on which assisted reproduction procedure was utilized to conceive the child.  For instance, if same-sex parents conceive via traditional surrogacy, where one father’s sperm is used to conceive with the egg of a woman who also carries the baby to term, then only the biological father’s name will appear on the birth certificate along with the surrogate’s name as a mother.  To establish the nonbiological father’s parental rights and to obtain a birth certificate reflecting the couple as the child’s parents, they will need to file a co-parent adoption petition. The finalization of the adoption terminates the traditional surrogate’s parental rights.  However, if the nonbiological father does not cooperate with this process, court involvement will likely be necessary.

It is important that a divorcing spouse who does not believe, or knows, that they are not the biological parent of the child being carried by the other pregnant spouse seek the advice of competent divorce counsel to help navigate the divorce and paternity actions.

2. Child support and a parenting plan will not be addressed until the child is born.

The family court has jurisdiction over all children under the age of 18, but will not make decisions regarding a minor child’s care, custody, and support until the child is born.  Therefore, if expecting parents are divorcing, any custody or child support cannot be determined in advance.  The divorce itself, division of the marital estate, and support for any current children and/or the spouse in need of support can be resolved, except for child support and parenting for the yet unborn child. Divorcing parties may potentially be required to come back to court if the divorce is finalized before the child is born, to resolve custody and child support for that child.

While Bridget Moynahan, Tiki Barbar, and Denise Richards were all able to resolve their divorces during pregnancy, and have moved on to other relationships and had additional children with their new partners, they all retained competent divorce counsel in order to do so.  If you or your spouse are pregnant and contemplating or going through a divorce, you should retain an experienced divorce lawyer to advise you through the process.

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