Pregnant and Expecting – a Virginia Divorce

Posted on Aug 29, 2022 by Katie Carter

Pregnancy can be wonderful, but it can also be really challenging – especially if you’re also starting to think that your marriage may not last past (or even up until) the birth. Expecting women are particularly vulnerable, especially if you’re currently unemployed, because childbirth is both personally and professionally complicated.

Not only that, but caring for a newborn is challenging even under the best of circumstances- imagining that you might have to do it without a partner’s support could feel downright impossible.

You’re obviously smart, though, because you’re taking the time now to gather information, which could prove pretty crucial in the weeks and months to come, both before and after baby arrives.

So, what are your options, legally speaking?

Well, divorce is divorce, no matter whether you’re pregnant or not. In Virginia, you can either get divorced by agreement (we typically call this a ‘separation agreement’, but I’ve also heard ‘stipulation agreement’ and ‘property settlement agreement’) or you go to court. In court, the judge will issue your divorce and decide for your how your assets and liabilities will be divided.

Typically, your divorce will be handled where you last lived as husband and wife – so, if you lived together in Virginia Beach (or Norfolk or Hampton or Chesapeake or Newport News or Suffolk), that’s where you’ll file. Technically, any court in the Commonwealth can grant your divorce, so you may find that – if your case is uncontested – you can file it somewhere else, but if its litigated you won’t have as many choices. Also, if you move out of state, you’ll still need your divorce finalized in Virginia.

What about custody and visitation?

Custody and visitation will also be determined as part of your divorce, if the baby is born or you have other children born to or adopted by the two of you. It’s possible that you could negotiate custody and visitation of your baby before birth, but a judge wouldn’t order it. If your divorce is finalized before the birth, chances are good that – if its litigated, anyway – you’d handle custody and visitation separately. In any case, anything related to the child (custody, child support, visitation) is going to be modifiable based on a material change in circumstances anyway.

I think that, if you pre-agree to custody and visitation, it’s probably fine if the two of you just move forward into the future and follow the agreement. If, however, your feelings change, you could always petition to modify custody, visitation, and/or support. I think it probably makes more sense (and would hold up better legally) to handle custody and visitation after the birth anyway – there is, after all, not really any ‘custody’ or ‘visitation’ of a baby who is currently unborn. There’s definitely a lot of uncertainty surrounding this, especially if you agree to one set of custody and visitation rules for you’re already-born children, which you would probably have to do.

Can I relocate?

Almost all pregnant and divorcing moms ask me about relocation. I think a lot is going to depend on whether you and your child’s father already have children together. If you already have children born, you’re going to find it’s pretty difficult to move, especially if you ask the court to let you. Can you ask for forgiveness, rather than permission? Maybe, but it’s super risky.

If your only child with your child’s father is your soon-to-be born child, then, yes, I think you can move. Your divorce will still be handled here, but the court can’t force you to physically stay in Virginia and, since your baby is unborn, can’t really force the baby to remain, either. If your support system is in place somewhere else, it makes sense that, while you’re pregnant, you’d move there.

Once you’re there, and you have the baby, it would be much more difficult for the court to order you to return.

That doesn’t mean that the timeline isn’t challenging, though. How soon will you give birth? Are you sure the relationship is over? You’re grappling with a lot of big decisions, and it can be difficult to know for certain how you want to start to move things forward.

Keep in mind, too, that moving can make custody and visitation really challenging. Since traditional parenting schedules aren’t really possible, you may find, especially as the child gets older, that your child’s father gets bigger blocks of time – like, holidays from school, or even the entire summer. A lot will depend on where you move, how aggressive your child’s father is, and what type of visitation schedule is feasible under the circumstances as they exist at the time – which is sort of impossible for me to know now, I just want to make sure that you know that being able to move doesn’t mean you get a free pass to do whatever you want, custody-wise.

What about breastfeeding?

When we’re talking about custody and visitation of a newborn, breastfeeding almost always comes up, too. Obviously, it’s totally fine if you don’t want to nurse your baby, but there’s no question that to nurse requires a certain amount of continuous proximity between you and the baby.

Depending on the age of your child, and the amount that you’re nursing, a different type of custody and visitation arrangement may be ideal. You may find that the judge isn’t necessarily that supportive of your breastfeeding relationship (or, at least, not of it looking the way you might wish that it would look), so if you’re litigating the issue, you’ll want to have doctors and lactation consultants to help you make the case for nursing.

It’s not impossible to have the court recognize the importance of breastfeeding, but it’s also not guaranteed. We’ve heard horror stories of moms told to ‘just pump’ and of dads who refused to follow safe storage guidelines for breastmilk. Even outright refusing to give the baby the pumped milk! After all, the court can’t MAKE dad feed the breastmilk.

It’s not a perfect scenario in any case, but if you’re trying to make a case for nursing, you may want help.

If you’re pregnant and facing a divorce, feel free to reach out to our office at 757-425-5200 or request a copy of our custody book for Virginia moms (which has a section on breastfeeding). Good luck!