Every year, millions of parents welcome new life into the world. Some do it together. Others, despite their best intentions, realize their marriage is no longer working.
Pregnancy and divorce are both life-altering experiences on their own. Going through them at the same time can feel overwhelming.
California law allows divorce during pregnancy, but it comes with legal and financial considerations that many don’t expect. Paternity, custody, child support, and even medical care can become complicated.
The good news is that the law provides clear steps to protect both parents and the unborn child.
Whether this pregnancy was part of the plan or an unexpected turn, what happens next matters.
Pregnancy and Divorce Laws in California
Can You Get Divorced While Pregnant in California?
Yes, you can. California does not require couples to stay married just because they are expecting a child. However, child custody and child support decisions cannot be finalized until after the child is born.
Under California law, courts will not issue legally binding custody and support orders until after birth.
This delay ensures that decisions are based on the child’s best interests, including medical needs and parental caregiving ability, which cannot be fully assessed before birth.
Presumption of Paternity
Under California Family Code § 7540, if you’re married when you conceive and give birth, the law assumes your spouse is the child’s legal father.
This remains true even if you’re in the middle of a divorce or if the baby is born within 300 days after the divorce is finalized. The idea is simple—the law follows the typical length of a pregnancy.
The Presumption of Paternity: Legal Implications
The automatic paternity presumption creates both protections and potential complications during divorce.
When a spouse is legally presumed to be the father, this establishes:
- Legal responsibility for child support
- Parental rights regarding custody and visitation
- The child’s right to inheritance and benefits
This presumption applies regardless of biological reality unless legally challenged.
Challenging Paternity
If there’s a question about who the biological father is, either spouse or the potential biological father can request DNA testing under California Family Code § 7575.
Paternity challenges must generally be filed within two years of the child’s birth. However, there are exceptions where a challenge may be allowed beyond this deadline, particularly if:
- The presumed father was misled about paternity or discovered new evidence.
- The biological father seeks to establish paternity and has not previously had the opportunity.
- The court finds that changing legal paternity is in the child’s best interests.
If paternity is not challenged within the two-year window, the presumed father remains the legal father.
If DNA testing proves the presumed father is not the biological father, the court will typically recognize the correct father, especially if the child is unborn or very young.
However, if the child is older and has an established parental bond with the presumed father, the court may deny a paternity challenge if it finds that changing legal paternity would not be in the child’s best interests.
Filing for Divorce While Pregnant
Filing for divorce in California while pregnant follows the same legal steps as any other divorce, but pregnancy brings additional considerations that can affect the process.
Depending on when you file and how quickly the court processes your case, most aspects of your divorce, such as property division and spousal support, can be finalized before the baby is born.
However, custody and child support decisions must wait until after birth.
This postponement can actually work in your favor:
- It allows the court to make custody and child support decisions based on real circumstances rather than speculation.
- It gives both parents time to prepare financial and parenting arrangements.
- It ensures the birth certificate reflects accurate legal information.
When and How to Inform the Court About Your Pregnancy
In California, there is no legal requirement to inform the court that you are pregnant when filing for divorce.
However, disclosing the pregnancy early in the divorce process helps avoid legal complications by ensuring the correct paternity, custody, and support processes are followed from the start rather than needing legal corrections after birth.
When Should You Inform the Court?
- As soon as possible if the pregnancy will affect financial matters, such as spousal support or medical expenses.
- Before finalizing the divorce to ensure that the court considers any necessary legal arrangements for the child.
- If there is a paternity dispute, so the correct legal father is established.
How to Inform the Court?
- Through Legal Filings: If the pregnancy affects financial or custody matters, your attorney can include the information in court documents, such as declarations for spousal support or temporary orders.
- During a Court Hearing: If a hearing is scheduled regarding support or financial arrangements, your attorney can verbally notify the judge of the pregnancy.
- Through Mediation or Settlement Discussions: If both parties are negotiating terms, the pregnancy should be discussed as part of future custody and support considerations.
Immediate Considerations For Divorce During Pregnancy
Automatic Temporary Restraining Orders: Protection During Vulnerability
When you file for divorce in California, Automatic Temporary Restraining Orders (ATROs) take effect immediately. These provide critical protections during pregnancy by:
- Preventing either spouse from removing the other from existing health insurance policies
- Prohibiting the concealment or disposal of community property
- Restricting either party from creating new debt in the other’s name
- Preventing either spouse from removing minor children from the state
These protections are especially valuable during pregnancy when medical coverage and financial stability are paramount. ATROs remain in effect until your divorce finalizes, providing a safety net during this vulnerable time.
A court may also order the non-pregnant spouse to contribute to prenatal care, hospital costs, and delivery expenses. These expenses may later be included in child support calculations.
Remember that pregnancy-related medical costs extend beyond delivery to include prenatal care, specialized testing, and potential complications—all factors courts consider when addressing temporary support.
Temporary Spousal Support
California courts understand the financial vulnerability pregnancy creates. Temporary spousal support becomes especially critical, covering:
- Basic living expenses
- Pregnancy-related costs
- Lost income due to pregnancy complications or limitations
Courts determine support amounts based on factors including income disparity, standard of living during marriage, and the supported spouse’s needs—with pregnancy creating additional legitimate needs.
Custody Considerations for Your Unborn Child
While courts can’t make custody determinations for an unborn child, you can begin setting the framework for post-birth arrangements during the divorce process:
Deferred Decision-Making
Final custody and visitation decisions typically wait until after birth, when the court can evaluate:
- The child’s specific needs
- Bonding between the infant and both parents
- Each parent’s demonstrated ability to provide care
Special Considerations for Newborns
California courts recognize that newborns have unique needs that impact custody arrangements:
- Breastfeeding may influence initial visitation schedules
- The primary caregiver’s role carries significant weight
- Overnight visits may be gradually phased in as the child develops
The courts focus on stability and attachment during this critical developmental period while ensuring both parents maintain meaningful relationships with the child.
How Pregnancy Affects Divorce When Other Children Are Involved
If you have other children from the marriage, their custody, visitation, and support arrangements will proceed separately from issues related to the unborn child.
The pregnancy does not delay existing custody orders, and courts will determine schedules and financial support based on what’s best for the older children.
Does Pregnancy Affect the Custody of Existing Children?
Pregnancy alone does not change custody arrangements, but it may become a factor if:
- Health complications impact the pregnant parent’s ability to care for the children.
- The non-pregnant parent argues that the pregnancy affects co-parenting.
- A new baby with a different father changes the pregnant spouse’s financial stability.
What Happens After the Baby Is Born?
Once the baby is born, existing custody and support arrangements for older children may be revisited if the financial or caregiving situation has changed.
- Child Support Adjustments: A parent supporting a new child may request a reduction in payments for older children, but the court will only approve it if the change is significant and still serves the children’s best interests.
- Custody Modifications: If caring for a newborn disrupts a parent’s ability to follow their current custody schedule, the other parent can seek an adjustment.
- Parental Availability: If the primary custodial parent struggles to meet all the children’s needs due to the demands of a newborn, the court may consider modifying the arrangement temporarily or permanently.
If you anticipate that the new child may impact existing child support or custody orders, you can petition the court for a modification after the birth. However, any changes must be proven to be in the best interests of all children involved.
Remember, you can request that the court address custody and support for all children—both the newborn and any older siblings—in the same proceeding.
This helps avoid multiple court appearances and ensures that child support calculations and custody schedules are determined with the entire family in mind.
However, the court will make separate custody and support determinations for each child based on their individual needs and circumstances.
Divorce Guidance During Pregnancy
Divorce during pregnancy comes with unique challenges. The choices you make now will shape your future and your child’s well-being.
At Provinziano & Associates, our experienced divorce attorneys understand the legal and financial concerns that come with this situation.
We will help you secure support, protect your rights, and set a strong foundation for parenting after divorce.
Contact us at 310-820-3500 to schedule a case evaluation and develop a strategy tailored to your unique situation.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every family law case is unique, and outcomes depend on individual circumstances. Legal representation with Provinziano & Associates is established only through a signed agreement.
For personalized advice, please contact our team at 310-820-3500 to schedule a case evaluation.
