What if I get pregnant before I’m divorced?

Posted on Jul 27, 2018 by Katie Carter

I get it. Things don’t always work out exactly like we planned. Sometimes, unplanned things can pop up, and can complicate things in ways that we never anticipated. When it comes to babies and divorce, well, it sometimes happens.

I don’t need to tell you it’s probably not ideal timing. But it’s a baby, and babies are wonderful, and so, first thing’s first: congratulations!  Babies are wonderful, and I’m sure your tiny new human will enrich your life in totally unexpected ways.

Next, though, it’s probably a good idea to do some damage control because, as far as your divorce is concerned, having a baby could make your divorce considerably messier.

If it’s your husband’s baby

If it’s your husband’s baby, it complicates things, but maybe not as much as the alternative. If it’s your first child together, it means that instead of getting a quickie uncontested divorce after just six months of separation with a signed agreement, you’ll have to be separated for a full year before your divorce can be granted. That may be annoying.

Custody and visitation are also now a part of the proceedings, which can muddy up the waters still further. When it comes to dividing property and that sort of thing, there’s a financial value associated with each asset – so it’s pretty clear how far we’ll go litigating over those issues. With kids, though, it’s much harder to set a value, and sometimes costs involved in custody cases can be high. It depends on the issues of course; many parents are able to work out a custody agreement without too much fuss. Others, though, can’t and then in some of those cases, a judge ends up determining custody and visitation instead.

If you’ve already got children, none of this will surprise you, and what difference does one more make? Probably not a ton. You may want to make sure, though, that the divorce isn’t finalized until after the baby is born, so that you don’t lose health care coverage at any point during your pregnancy or immediately thereafter. If you have independent coverage through your work, then it doesn’t matter – you’ll be able to join on your work’s policy after your divorce is entered without waiting for open enrollment. Just make sure you talk to someone in benefits at your office beforehand, to make sure everything is set up to run as smoothly as possible.

If it’s not your husband’s baby

Well, things happen, right? No judgment here. Still, as far as your divorce is concerned, it may complicate things.

Obviously, it opens the door to a fault based divorce. The good news? Adultery is difficult, time consuming, and expensive to prove. The bad news? Adultery is difficult, time consuming, and expensive to prove. So, although these cases rarely are proven and a divorce granted on those grounds, divorces are often filed on fault, and a great deal of time and money can be consumed early on in the case before the parties fizzle out and reach an agreement anyway.

If he has committed adultery, too, though, you may be in the clear, at least on this point. One of the defenses for a divorce filed on adultery grounds is recrimination. He can’t allege against you something that he is equally guilty of. In that case, neither of you could get a divorce on adultery grounds. You’d have to use different fault based grounds, or you’d have to finalize on no fault grounds instead (which just has to do with being separated for the statutory period).

Adultery is also a bar for spousal support. Of course, that’s assuming you would qualify to receive it anyway; if your income and your husband’s income is relatively similar, or if you make more, you wouldn’t qualify anyway, so it’s a more or less moot point. If you earn substantially less (or none at all), though, this could be a point that trips you up.

These are (obviously) pretty big issues. The potential for your divorce to turn nasty is substantially higher in cases where adultery is an issue, so you should be aware of and prepared for this possibility.

What if I’m planning to get pregnant?

Yeah, well… Maybe it would be better to wait? I mean, do what you want; we’ll sort it all out later.
Still, it really complicates things, so it’s probably better to wait, if at all possible. I mean, it’s one thing to find out that you’re pregnant unexpectedly, and it’s another to plan to complicate the situation even further.   Remember that adultery is a crime in Virginia (though rarely prosecuted), and it’s just not a good idea to toe that line on purpose.  I just have to recommend against that particular choice.

For more information, or to talk to one of our attorneys about your unexpected pregnancy, give our office a call at 757-425-5200, and we’ll help you work it out.