Can You File for Divorce When Either Spouse is Pregnant?

pregnant woman

Pregnancy is usually the beginning of a new chapter in a marriage. However, for many married couples, pregnancy occurs when their marriage is on the rocks. In fact, for some, unintended pregnancy may even become a reason for divorce. 

But can you actually file an Original Petition for Divorce if you or your spouse is pregnant? Is it legal to get a divorce during pregnancy in Texas? Although the answer depends on the circumstances of your particular case, a married couple may have to wait until the baby is born to get a divorce.

It is vital to consult with a knowledgeable divorce attorney if you or your spouse is pregnant, but you want to end your marriage before a baby is born. Schedule a free case evaluation with our Williamson County divorce attorneys to discuss your particular situation. (Click here to learn what questions to ask your divorce attorney)

Can You Get a Divorce During Pregnancy in Texas?

As a rule of thumb, Texas courts do not grant a divorce when either spouse is pregnant. However, just because the court will most likely not grant your divorce while you or your spouse is pregnant does not necessarily mean that you cannot start gathering the necessary paperwork and preparing for your divorce filing. (Related: 4 Things You Should Know if You Are Filing for Divorce in Texas)

The reason Texas courts do not grant a divorce during pregnancy is simple. If a divorce is granted while either spouse is pregnant, the couple would most likely reopen their divorce case after the baby is born to resolve their issues related to child custody and support. 

If a divorce is granted before a child is born, there will be additional legal issues regarding paternity. This would allow fathers to get a divorce to avoid an obligation to pay child support. 

Related: At What Age Can a Child Decide Which Parent to Live With?

What Happens if the Husband is Not the Child’s Father? 

It is not uncommon for children to be born outside of marriage, especially when marriage is on the rocks. If the husband is not the child’s father, it may complicate matters because there will be questions regarding paternity and issues involving child support and custody. 

Under Texas Family Code § 160.204, a pregnant woman’s father is presumed to have fathered the child if the woman is married at the time of childbirth. It is possible to overcome the presumption if the woman’s husband and the man who actually fathered the child agree about the paternity. 

If there is no agreement between the two men, the woman’s husband will be presumed to be the father until a DNA test confirms otherwise after a child is born. 

Can You File a Petition for Divorce During Pregnancy? 

Although you cannot get a divorce while you or your spouse is pregnant, you can file for divorce to initiate the legal process. In other words, you do not have to wait until a child is born to file an Original Petition for Divorce. 

While some couples may be reluctant to file for divorce during pregnancy, you may benefit from filing a petition for divorce during pregnancy. If you file for divorce before a child is born, you will have a reasonable amount of time to negotiate a mutually beneficial agreement. 

Reaching an agreement without court involvement is a cheaper and less stressful way to get a divorce in Texas. If you and your spouse want to get a divorce after your child is born, do not waste the months of your pregnancy. Use those months to resolve disputed issues related to the division of property, spousal support, child custody, child support, and many more, 

When negotiating a settlement with your soon-to-be-former spouse during pregnancy, it is highly advised to be represented by a knowledgeable attorney to protect your interests. Your attorney may advise you to try mediation or collaborative divorce to reach an agreement. 

If you are considering waiting until a child is born to file for divorce, keep in mind that Texas imposes a 60-day waiting period. In other words, you will have to wait 60 days after filing your petition before your divorce can be finalized. 

Child Support and Pregnancy During a Divorce

If there are no disagreements regarding paternity, the court may delay granting a divorce until after the child is born in order to calculate an appropriate amount of child support. In Texas, child support payments are based on the non-custodial parent’s income. 

To ensure an accurate child custody order and prevent the parties from seeking modifications once the child is born and the parties’ circumstances change. Texas courts prefer to wait until the child is born to determine an appropriate award of child custody. 

Can You Get a Divorce if You Were a Victim of Domestic Violence?

If you are pregnant and were a victim of domestic violence, you may want to request a protective order to protect your own safety and wellbeing and the safety of your unborn child. You can obtain a protective order to force your abusive spouse to leave the family home during your pregnancy and divorce. 

Contact an experienced attorney to help you seek out a protective order in your case. It is important to act quickly if you want to protect yourself and your family before and during your divorce in Texas. 

Consult with Williamson County Divorce Attorney

Pregnancy cannot prevent you from filing for divorce. However, if you or your spouse is pregnant, a Texas court will not grant your divorce until after a child is born. You can put the months of your pregnancy to use by negotiating a settlement with your spouse. 

It is a good idea to seek the legal counsel of a knowledgeable divorce attorney to help you prepare for your divorce and protect your best interests if you or your spouse are pregnant during your divorce proceedings. 

Schedule a case review with our Williamson County divorce attorneys at The Law Office of Brett H. Pritchard to determine if you can file for divorce if you or your spouse is pregnant. Call (254) 220-4225 for a case review. 


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