You can begin the divorce process while pregnant in Wisconsin. However, the court will likely require the child to be born before the divorce can finalize so paternity can be established. Once paternity is established, issues regarding the child can be a part of the divorce. Those issues include child custody, child placement, and child support. If the father is not a party in the divorce, paternity will still need to be established.
Navigating a divorce is always emotionally and legally challenging. When you are pregnant, the process can become even more complex. Understandably, you might be asking: “Can you get divorced while pregnant?” In Wisconsin, the answer is yes, but there are important caveats and considerations.
In Wisconsin, divorce is a no-fault process: either spouse may petition the court for divorce because the marriage is irretrievably broken. However, the fact of pregnancy introduces additional legal implications. Specifically, Wisconsin law holds that if a child is born during the marriage, there is a legal presumption that the husband is the father. Because of that presumption, courts may be hesitant to finalize a divorce if the wife is pregnant and paternity or custody issues are unresolved.
If one of the parties becomes pregnant or is pregnant at the time of filing for divorce or after the filing of divorce, the most likely scenario is that the case will be paused until the child is born or the pregnancy otherwise ends. This is to allow for genetic testing and to determine if the presumption of paternity created by the marriage can be overcome. If the spouse is not the father, the court will need to determine if the presumption of paternity should stand. That means: yes, you can file and proceed with divorce while pregnant, but you should be prepared for potential delays and extra issues around custody, paternity, and support.
Preparation is key. Here are steps to consider when you’re pregnant and preparing for divorce in Wisconsin.
As noted, Wisconsin is a no-fault divorce state. The court will handle property division, spousal support, child custody, child placement, and child support. Importantly, if you’re pregnant, the “child” may be treated as born to the marriage if no action is taken. This is the presumption of paternity automatically created by being married to someone.
There are specific documents and information to gather to best set you up for divorce.
Given the added complexity of pregnancy, it’s wise to seek legal counsel from an attorney who is familiar with Wisconsin family law and has experience handling cases involving unborn children or prenatal issues. Having guidance will help you navigate financial disclosures, paternity issues, and any potential delays.
Because of the impending arrival of a child, you may need to think ahead about temporary orders. Temporary orders are made at a temporary order hearing.
While you can begin a divorce while pregnant, the process may be delayed if paternity or the child’s status is unresolved. The court will likely not proceed before birth, and will likely pause the case until after the child is born. It is wise to plan emotionally and financially for a longer timeframe than you may initially have anticipated.
It is important to tell all relevant parties about your pregnancy during the divorce and not to wait. There are legal ramifications that need to be worked on as a part of the divorce process.
It’s advisable to inform your spouse (or soon‐to‐be ex) of the pregnancy in a calm, clear way. While this may feel anxiety-inducing, open communication can reduce surprises and help both parties plan appropriately. Some considerations:
In Wisconsin divorce or paternity proceedings, when an unborn child is involved certain statutory rules apply. Under Wisconsin statutes § 767.80, if the child is unborn, the action shall be stayed until after the birth. Similarly, if a spouse is pregnant, when a divorce is filed, the court is unlikely to make a ruling that would leave the child without a legal father. Thus, it is crucial to formally disclose your pregnancy in pleadings or communications with the court. Failing to do so will result in further delays down the road.
Misrepresenting your situation to the court, such as denying you are pregnant when you are, can carry serious consequences. If a court discovers a party failed to disclose pregnancy, or lied about it, the court may:
In Wisconsin, there is a legal presumption of paternity that applies to a child born during a marriage. That presumption is that if a child is born during a marriage, the male spouse is presumed to be the father unless rebutted. This issue can be further complicated if a male spouse who is not the biological father signs a Voluntary Paternity Acknowledgement (VPA) at the hospital or at the time of the birth. The signing of a VPA is how the father is added to the birth certificate. Once added to the birth certificate, changing or correcting this document can be difficult and requires additional court orders.
In short, honesty is critical. Disclose the pregnancy, be upfront about expectations, and work with your attorney on how to best present the facts to the court.
The scenario of a pregnant spouse expecting a child by someone other than their husband is fraught both emotionally and legally. In Wisconsin this situation complicates matters significantly.
As noted, Wisconsin presumes that a child born during a marriage is the child of the husband. Even if the husband is not the biological father, that presumption stands unless rebutted by the testimony of a guardian ad litem and genetic testing. For this reason, this issue needs to be addressed as soon as possible.
If the child is expected and the pregnancy is not by your spouse, the court will most likely delay or stay the divorce until after birth or until paternity is resolved. A required question for women during the final divorce proceeding is “Are you currently pregnant?” Your spouse will also be asked, “To the best of your knowledge, is your spouse not currently pregnant?” Both of these questions must be answered in the negative, and the court actually enters a finding on this issue. Hence, failure to identify the biological father (or to undergo paternity testing after birth) can carry consequences for the separated spouses and the child.
If you are in this situation, consider these steps:
Ultimately these are complicated legal matters. For legal assistance, contact Divergent Family Law to speak with an attorney who is an expert in family law.
