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Divorce can be complicated, and divorcing with children is even more complex.  If you are pregnant, some states prevent you from being able to get a divorce until after you give birth.  In California, your freedom to get divorced is strongly protected.  The Ventura divorce attorneys at The Law Offices of Bamieh and De Smeth explain how divorcing while pregnant works in California.

Divorce During Pregnancy in California

California’s divorce laws give you the right to get divorced with little need to prove grounds for divorce or satisfy requirements before you can apply for divorce.  California is a no-fault divorce state, meaning that the primary way to get a divorce is to claim that you and your spouse have irreconcilable differences and that you can no longer maintain the marriage.

Some states prevent couples from getting divorces while pregnant.  The primary purpose of these rules is to ensure that the child is born and its parents are established before the marriage is over so that questions of parentage do not complicate child custody and support issues after the divorce.  These laws may also cling to older ideas that children should not be born out of wedlock, but CA law gives parents more freedom to marry, divorce, and have children as they please.

Because of this, you can file for divorce while you or your spouse is pregnant in California.  However, there are complications that may come into play if you divorce while pregnant.

Custody Issues with Divorcing While Pregnant

One of the first issues with divorce during pregnancy is child custody.  The mother who gives birth is automatically considered the child’s natural parent, but CA child custody laws also presume that their spouse is the other parent if the child is born while they are married.  In some cases, the child may be from relations outside the marriage, but the law may still give parental rights to the pregnant woman’s spouse.  Since the ruling in the 2017 Supreme Court case Pavan v. Smith, these rules must also apply to same-sex couples and same-sex divorce cases.

If the baby comes after the divorce is finalized, it may complicate things.  Because of this, most courts will not finalize a divorce until the baby is born – but you can file for divorce in the meantime.  The same presumption of parentage law extends parental rights to the mother’s spouse as long as the child was born within 300 days after the divorce.  That is approximately 10 months, which fully covers the average length of gestation, even if the child was conceived as late as the day the divorce was finalized and you did not know you were pregnant until the divorce was finalized.

This rule makes it much simpler for courts to decide who the parents are after a divorce.  Only the legal parents can claim custody of the child.  This may complicate matters if the child’s natural parent is someone other than the divorced spouse.  Additionally, things may be complicated by the fact that the court is likely unwilling to establish any child custody orders until the child is actually born.  This typically means the couple will need to wait until the baby arrives before the divorce is finalized.

Child Support Issues If You Get Divorced Before Giving Birth

Just like child custody issues, child support cases may not be resolved until after the child is born.  In fact, child support decisions typically rely upon child custody decisions.  In most cases, the parent who has primary custody of the children will receive child support payments.  That means that the parent who spends less time with custody typically pays child support.

When a parent has their child living with them in their house, they typically pay many expenses out of pocket to support the child’s needs.  Child support is used to reimburse the custodial parent and divide the cost of childcare.  The decision of how much each parent contributes towards their shared children’s support depends heavily on the parents’ incomes and the number of other children they support.  If the divorce ends with each spouse caring for different numbers of children, such as children from a prior marriage, the parents may end up paying different amounts of support.

Talk to an attorney about your support payments for help calculating child support and understanding what kinds of child support plans and agreements you may be able to use in your case.

Ventura Divorce Lawyers Offering Free Consultations

If you are considering getting a divorce in California, talk to our Ventura family law attorneys today.  The attorneys at The Law Offices of Bamieh and De Smeth can help with your divorce case and the associated child custody and support issues if you are considering getting divorced while pregnant.  Many times, pregnancy is the catalyst for divorce, and California law gives you the ability to seek divorce while pregnant.  To schedule a free consultation with our lawyers and learn more about your rights, call our law offices today at (805) 585-5056.

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The Law Offices of Bamieh & Erickson, PLC

692 E Thompson Blvd
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The Law Offices of Bamieh & Erickson, PLC

209 E Anapamu St
Santa Barbara, CA 93101
(805) 861-2363
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