November 28, 2023


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Can We Divorce Even if My Partner Is Pregnant? | Burns & Levinson LLP

4 min read

What do Bridget Moynahan, Tiki Barbar, and Denise Richards have in prevalent?  They (or their wife or husband) were all pregnant though going by means of a divorce.

Divorce is never ever straightforward.  Divorcing though expecting provides another complication.  In some states it is not even achievable to finalize the divorce even though a social gathering is pregnant.  However, in Massachusetts, although anticipating moms and dads are permitted to finalize a divorce, there are particular obstructions about which a divorcing, anticipating mum or dad should be mindful.

1. There is a authorized presumption that a child born to a girl during a relationship is the child of her wife or husband.

Pursuant to Massachusetts Normal Rules, Chapter 209(C), part 6, a gentleman is presumed to be the father of a youngster if he is married to the mom at the time of delivery of the boy or girl or if the little one is born within 300 days right after the relationship is terminated by loss of life, annulment or divorce. (When the phrases person and girl are contained in the statute, this law applies to exact-intercourse couples, as well.) The husband’s name will routinely be placed on the beginning certification of the youngster, even if the husband is not the biological mum or dad.  It then gets to be the stress of the husband to get over the presumption of parentage.

What if the spouse is not the organic guardian?

A husband or wife whose title automatically appears on the beginning certification due to marriage, but who is regarded not to be the biological parent, may well request to have his name eradicated from the child’s birth certificate.

In get to suitable the start certificate to identify the organic father and not the spouse, if they are not a single and the identical, the spouse and spouse want to finish an affidavit denying that the spouse is the father of the little one, supplied that:

  • The mother and biological father have signed and filed an acknowledgment of paternity or
  • There has been a judgment of paternity by a court that the father is in simple fact the biological father or mother and not the partner or
  • There has been a judgment of nonpaternity by a courtroom that the partner is not the father.

Suppose the wife/mother is unwilling to total an affidavit denying the spouse as the father, or the spouse/mom and putative father (not the spouse) are unwilling to indicator and file an acknowledgment of paternity. In that scenario, it may well be necessary for the spouse to seek a judgment of nonpaternity.  Even though the spouse does not have the standing to start an motion looking for a judgment of paternity that the putative father is in simple fact the organic guardian of the child born to the wife all through the relationship or 300 days thereafter, the spouse can do so in purchase to search for fiscal guidance for the youngster if the spouse is found not to be the father.

For exact-intercourse partners going by a divorce when a person of them is pregnant, Massachusetts does also implement the marital presumption. Both equally parents’ names will show up on the birth certification based on which assisted copy technique was used to conceive the youngster.  For instance, if similar-intercourse dad and mom conceive through conventional surrogacy, the place one father’s sperm is made use of to conceive with the egg of a lady who also carries the newborn to phrase, then only the biological father’s name will surface on the start certificate alongside with the surrogate’s title as a mom.  To establish the nonbiological father’s parental legal rights and to attain a delivery certificate reflecting the couple as the child’s mothers and fathers, they will want to file a co-dad or mum adoption petition. The finalization of the adoption terminates the regular surrogate’s parental rights.  Having said that, if the nonbiological father does not cooperate with this course of action, court involvement will very likely be essential.

It is essential that a divorcing wife or husband who does not imagine, or is aware, that they are not the organic guardian of the child getting carried by the other pregnant husband or wife search for the advice of qualified divorce counsel to enable navigate the divorce and paternity actions.

2. Boy or girl assistance and a parenting strategy will not be tackled till the child is born.

The family courtroom has jurisdiction over all young children underneath the age of 18, but will not make selections relating to a minimal child’s care, custody, and assistance right until the little one is born.  Therefore, if expecting mom and dad are divorcing, any custody or baby help can’t be identified in advance.  The divorce alone, division of the marital estate, and assist for any latest children and/or the wife or husband in will need of help can be settled, other than for kid assist and parenting for the however unborn boy or girl. Divorcing get-togethers may well potentially be essential to arrive back again to court if the divorce is finalized just before the kid is born, to solve custody and little one support for that child.

While Bridget Moynahan, Tiki Barbar, and Denise Richards were being all able to take care of their divorces throughout being pregnant, and have moved on to other relationships and had extra kids with their new companions, they all retained skilled divorce counsel in order to do so.  If you or your partner are pregnant and thinking about or likely by way of a divorce, you ought to keep an knowledgeable divorce lawyer to recommend you via the method.

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