Can You Get a Divorce While Pregnant?

Arizona state law doesn’t restrict access to the divorce process because of an ongoing pregnancy. However, that doesn’t mean the process is simple. A pending birth adds layers of legal complexities involving paternity, custody, child support, and health-related considerations.

If you or your spouse is pregnant and you’re considering divorce, it’s essential that you understand your rights and responsibilities under Arizona law.

The Arizona divorce attorneys with Lincoln & Wenk, PLLC, would like to explore the question, “Can you get a divorce while pregnant in Arizona?” as well as how divorce laws during pregnancy affect the timeline and outcome of your case, and what steps to take to protect your interests and your child’s well-being.

Yes, You Can Work Toward a Divorce While Pregnant in Arizona

Arizona has no law that prohibits filing for divorce due to pregnancy. Unlike states such as Texas or Arkansas, which may delay the process until after the child is born, Arizona allows you to initiate a divorce at any time.

That said, divorces filed during pregnancy may not be completely approved by a court until after the child is born. This delay is primarily due to the court’s responsibility to either approve or establish paternity, custody, and child support arrangements. Many of these issues cannot be logically resolved until there is a living child who is subject to the court’s jurisdiction.

The Impact of Pregnancy on the Divorce Process

While you can generally file for divorce at any time, a judge may delay issuing a final decree because:

• Courts cannot assign legal decision-making involved with custody or co-parenting time for an unborn child.

• Child support orders require the child’s birth and a confirmed legal identity for calculation.

• Paternity needs to be legally established before the court assigns parental rights and responsibilities.

Even with these matters aside, Arizona mandates a 60-day waiting period between serving a divorce petition and finalizing the divorce.

Judges often prefer to handle all divorce-related matters, including all of the child-related issues, in one comprehensive final decree. Finalizing before birth could mean reopening the case later, which may be inefficient and more emotionally and financially draining for both parties.

Understanding the Presumption of Paternity

A critical factor in divorcing a pregnant spouse is Arizona’s presumption of paternity, outlined in A.R.S. § 25-814. Under this statute, the law presumes a man to be the legal father if:

• He was married to the mother at any time in the 10 months prior to the child’s birth, or

• The child is born within 10 months after the entry of a final decree of divorce.

This presumption has powerful legal implications. It grants the presumed father legal rights and obligations, including the potential for child custody and support, even if he is not the biological father.

Moreover, cohabitation is not required to trigger the presumption. Even if the parties have lived apart for a long period before the entry of a divorce decree, it applies.

Challenging the Presumption

If the husband is not the biological father, the law allows him to challenge the presumption. This may involve:

• The husband signing a notarized affidavit waiving paternity

• The biological father filing a voluntary acknowledgment of paternity

• Court-ordered genetic testing after the child’s birth

In cases where the husband believes he is the father but paternity is in dispute, he may opt to remain married until the child is born, ensuring he retains the presumption of his parental rights under the statute.

Child Custody and Parenting Time Post-Birth

Arizona courts prioritize the child’s best interests in assigning child custody, legal decision-making authority, and parenting time. But because the law cannot recognize an unborn child for custody purposes, these decisions are usually postponed until after the birth.

Once the baby is born, courts will consider several factors under A.R.S. § 25-403, including but not limited to:

• Each parent’s involvement during the pregnancy, including attendance at medical appointments

• Living arrangements, stability, and ability to co-parent

• Any history of abuse or domestic violence

Courts are often reluctant to award 50/50 parenting time to newborns, especially when the mother is breastfeeding or the father has had limited involvement through the pregnancy and delivery. However, a parent who can demonstrate consistent support and preparedness may still receive significant parenting time, rights, and responsibilities.

Child Support and Post-Birth Calculations

While both parents are financially responsible for their child, Arizona courts cannot issue enforceable child support orders until the child is born. The calculation of legally appropriate child support requires:

• A Social Security Number for the child

• Court-verified paternity

• Documented income information for both parents and co-parenting schedules

Once the court confirms paternity, state law sets out the calculation of child support using the Arizona Child Support Guidelines, which factor in:

• The incomes of both parents

• Healthcare and childcare expenses

• The number of parenting days assigned to each parent

You may be able to request temporary spousal maintenance during the pregnancy if your divorce case is pending, but not child support. Planning your finances during this transitional period with the assistance of an experienced divorce attorney is critical.

Pregnancy and Legal Separation

If you’re not ready to fully dissolve your marriage, legal separation is a different proceeding you may consider. Legal separation in Arizona allows couples to address financial, property, and parenting issues without formally ending the marriage.

Reasons someone might choose legal separation during pregnancy include:

• Retaining health insurance coverage

• Maintaining marital status for religious or personal reasons

• Avoiding rushed decisions during a stressful time

Importantly, legal separation does not eliminate the presumption of paternity of a child born within ten months of the order granting the separation. If you remain married during the birth, your spouse is still presumed to be the legal father unless otherwise contested.

Temporary Orders To Protect Your Interests and Your Unborn Child

While final orders may be delayed, you may qualify for temporary orders that a judge can enter to help stabilize your situation during the pregnancy. These can include:

• Temporary spousal maintenance

• Exclusive use of the marital residence

• Orders for the payment of medical expenses, particularly those related to pregnancy

• Restraining orders in the event of domestic violence

Temporary orders provide a legal structure while the case is pending and can protect the physical and financial health of the pregnant spouse. However, understand that these orders do not necessarily serve as precedent for the final orders of the divorce decree.

Domestic Violence and Protective Measures

If the pregnancy occurs in the context of abuse, don’t wait. Courts take allegations of domestic violence seriously, especially when the situation involves a born or unborn child. You can:

• File for an Order of Protection to restrict your spouse’s access

• Leave the marital home and establish residence elsewhere for safety

• Present evidence of abuse during custody evaluations

Judges can consider any history of domestic violence when assigning custody and parenting time and may enforce restrictions or deny unsupervised access to a parent deemed unsafe.

When To Consider Waiting for Divorce

Even though you can initiate a divorce while pregnant, some spouses choose to wait until after the birth. Possible advantages include:

• Simplifying custody and support orders in a single agreement or court order

• Reducing emotional and physical stress during pregnancy

• Preserving eligibility for health insurance or other marital benefits

However, waiting is not always a safe or realistic option. If the home environment is abusive, financially unstable, or emotionally damaging, delaying can do more harm than good.

Arizona allows spouses with financial hardship to apply for a waiver of court filing fees. If you anticipate a challenging legal battle, consult a family law attorney early to discuss legal costs, temporary support options, and temporary financial arrangements.

Practical Tips for Divorcing During Pregnancy

Although you can get a divorce while pregnant, that doesn’t mean you should proceed without preparation. Here are some practical steps to take.

Document Everything

Medical records, financial statements, and communication with your spouse may all be relevant later. Protect your digital records and passwords.

Address Paternity Early

Especially if the biological father is someone other than your spouse, clarifying paternity avoids delay and uncertainty if your spouse is cooperative.

Prepare for Delays

Expect the divorce to take longer than usual. Some issues won’t be resolved until after the baby’s birth.

Consider Mediation

If the relationship is reasonably amicable, mediated agreements on parenting plans and support can streamline the process and potentially reduce legal expenses.

Work Early on With an Experienced Arizona Divorce Attorney

Engage early in the process with an experienced attorney to help you understand legal obstacles and requirements and make informed decisions.

Contact the Team at Lincoln & Wenk, PLLC, To Discuss Your Case

Can you get a divorce while pregnant in Arizona? As we’ve discussed, the answer is yes, but make sure you’re prepared for the journey ahead.

An experienced Arizona family law attorney can help clarify custody and parenting time, request protective orders, negotiate temporary agreements, and advocate for your rights in court.

Call Lincoln & Wenk, PLLC, at (623) 294-2464 or contact us through our online portal to schedule your consultation at one of our offices in Goodyear, Phoenix, or Peoria.