When a couple undergoes a divorce during a pregnancy, there are several questions that may arise. For instance, a divorce during pregnancy might raise concerns about legal paternity, which is a requirement for a father to have visitation rights, child support obligations, and custody.
While it is completely possible to get divorced while pregnant, the court will be unable to permanently determine paternity until after the child is born. In the meantime, paternity is presumed automatically if the couple is married.
If the parties are not married, then the father may opt to file a judicial action for paternity or submit a Voluntary Acknowledgement of Paternity. If the mother denies paternity for some reason, then the father will have to undergo a paternity test later on.
Note that the husband is presumed to be the child’s legal father if the child is born during the marriage or within 300 days of a divorce decree—unless otherwise ruled by the court based on another presumption. An alternative presumption will only arise if the wife, the husband, and the other man believed to be the father all sign the proper documentation that affirms the other man as the child’s legal father. If the divorce is granted before the woman gives birth, the judge will ask them to return to court after the birth certificate has been issued so that the divorce decree can determine that the husband is not the child’s father.
When getting a divorce during a pregnancy, the parties may be concerned about the possibility of having less custody of the baby. This is unlikely to happen though, as both parents have equal claim to the child. Colorado courts do not favor parents of either sex when it comes to custody battles.
The parents must present a proposed parenting plan to their petition for visitation or custody, and demonstrate that this plan is in the child’s best interests. The court must approve any custody plans proposed by the parents, and will only assign custody based on the child’s best interests. Many custody agreements allow the non-custodial parent to spend a few hours several days a week with the baby.
Petitioning for child support may be done before the baby is born. No order will be given, however, until after the birth of the child. Child support is calculated according to the state’s own formula, which considers the child’s needs and the income of both parents. If the mother becomes very ill after childbirth and requires extra child care or additional help, the father may be asked to help pay for such expenses if he is the non-custodial parent.
Divorcing couples must be aware that divorcing prior to the birth of the child will not prevent either parent from asserting custody or visitation rights, nor will it relieve either parent of their child support obligations. Couples undergoing a divorce while pregnant must be prudent and be aware of their rights and available options prior to the birth of the child.