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  • Writer's pictureJosh Ormond

Can I Get A Divorce If I Am Pregnant?

Updated: Mar 13

While pregnancy can be filled with anticipation, joy, and excitement, it can also place added stress on spouses and on marriages. The added stress of a new child can expose cracks in the marital relationship, leading some couples to consider or even file for divorce. 

if you or your spouse are pregnant, it's important to know how a divorce could affect legal rights.

If you or your spouse are pregnant and considering divorce, it’s important to know your legal rights and how a divorce could affect things like parental rights, child custody, and child support.

In some states, the law actually prohibits someone from obtaining a divorce while they are pregnant. While there is no New Jersey law banning a divorce during pregnancy, pregnancy can raise complex legal issues during dissolution proceedings that require the advice of a sophisticated family law attorney. Indeed, you can obtain a New Jersey divorce while pregnant, but there are important questions to have answers and considerations to keep in mind.

For instance, divorcing fathers may be wondering if they will still have legal rights to an unborn child if their marriage is dissolved during their ex-wife’s pregnancy. In short, the answer is generally yes. 

Under New Jersey paternity law – specifically N.J.S.A. 9:17-43 – a man is presumed to be the biological father of a child born during an intact marriage. However, a man is also presumed to be the biological father of any child born within three-hundred (300) days of the marriage being terminated by divorce, annulment, or one spouse’s death. 

Establishing paternity is the first step in affording fathers legal rights to a child - e.g., custodial rights such as parenting time and legal decision-making authority. It is also the first step in imposing parental obligations, such as the duty to pay child support.

The presumption that a man is the biological father of any child born within three-hundred (300) days of a divorce can only be rebutted by “clear and convincing evidence”. Generally, genetic testing confirming an individual is not biologically related to the child would constitute clear and convincing evidence to rebut the presumption of paternity.

In addition to questions surrounding parental rights, divorcing couples may also want to know how issues like child support and child custody will be handled when one spouse is pregnant. They may question whether pregnancy can delay your divorce case until after the baby is born.

In short, you can still file a complaint for divorce or be served with a divorce complaint while one spouse is pregnant. A pregnancy in and of itself cannot be used to delay or prevent divorce proceedings. 

However, New Jersey judges cannot render decisions regarding custody and parenting time until after the child’s birth. Once the child is born, the Family Court will consider the best interests of the child in determining the custody arrangements and parenting time schedule. In making its decision, the Court will consider a variety of factors outlined under the New Jersey custody statute - namely, N.J.S.A. 9:2-4

Lastly, if you are pregnant and going through a separation, you may be wondering how a divorce could impact medical coverage for you and your future baby. 

Once the child is born, the newborn will be eligible to be covered by either parent. 

However, it is important to know that once a Final Judgment of Divorce is issued by the Court, spouses are no longer eligible to be covered under the other’s health insurance. 

After the divorce is finalized, each spouse is responsible for obtaining their own healthcare coverage. This can be accomplished through a COBRA election; getting employer-sponsored health insurance; or getting insured through GetCovered NJ, the health insurance marketplace. Depending on the circumstances, one spouse may be awarded spousal support or alimony as part of the divorce settlement. This may help defray some, but not all, of the costs of obtaining new healthcare coverage.

Moreover, the termination of healthcare benefits triggered by a divorce can lead to an interruption in medical coverage. This interruption could cause the pregnant spouse to experience difficulties obtaining or maintaining adequate prenatal care. Therefore, it’s essential that both parties consider this as a potential consequence when considering whether to finalize a divorce during pregnancy.

As the above examples illustrate, while it is possible to obtain a divorce while pregnant in New Jersey, the pregnancy itself can raise thorny issues requiring skillful legal acumen. 

For more insight on pregnancy and divorce as well as related issues like child custody and child support, call Ormond Law and get a free consultation with a divorce attorney today. 

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