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As you might expect, pregnancy is a potentially dangerous issue during a divorce case. Read through the following factors regarding pregnancy in divorce. They are designed to keep the considerations as simple as possible – without ignoring the legal practicalities of pregnancy in divorce:
1. If the wife is pregnant and both spouse/partners agree that the pregnancy is a pregnancy of this marriage/partnership, there is no problem here.
2. However, if the wife is pregnant and the spouse/partners do not agree that the pregnancy is a pregnancy of this marriage/partnership, that’s a big problem. If there is a current pregnancy AND a dispute regarding the paternity of that pregnancy, you and your spouse/partner MUST resolve that dispute through medical tests before proceeding. That could involve considerable delay dependent upon the extent of the pregnancy.
3. If the wife is pregnant and there is good reason to believe that the husband is not the father, that is an even bigger problem for the divorce process than if there was a simple dispute about paternity. It is a bigger problem because of the strong presumption in law that the pregnancy of a married woman is the child of the husband. Medical evidence can rebut that presumption of course, but medical tests cannot always be performed. What are your practical options here? You can obtain medical proof, when that is available, that the pregnancy is not a child of the marriage/partnership and then decide that the presumption has been rebutted on the factual strength of your medical evidence. You could then answer “no” to the pregnancy question (the divorce Petition asks for “minor children of the marriage/partnership” – not whether there is a pregancy, so if you have determined that the pregnancy is not a child of the marriage/partnership, it is not a problem if you answer “no” to the pregnancy question). If you don’t want to bother with medical evidence, you can wait until the pregnancy no longer exists and answer the question “no.” Or if you don’t want to bother with medical evidence AND you do not want to wait, you can answer the question as “yes” right now. If you do so, you must list the unborn child as a child of the marriage/partnership because of the strong legal presumption that you have not rebutted with medical evidence. Then later in the case, depending upon how fast you move in your case, you would either have to file an amended Petition to remove the child from the Petition after the child is born or you would have to provide the court, probably during a court hearing, and always providing that the medical evidence supports you, with proof that the unborn child originally listed in the Petition is not in fact a child of the marriage/partnership.
4. If your current answer to the pregnancy question changes before the date on which your divorce case is first filed at court, you MUST modify your answer before printing or re-printing the first set of legal documents to be filed at court.
5. If your current answer to the pregnancy question changes after the date on which your case is first filed at court, you MUST modify your answer. Then you will have to print out and file at court an amended Petition to reflect that change.
You should also bear in mind that there are limitations on filing amended paperwork at court. Generally speaking, but this is not a hard and fast rule, the court will permit one “free” amendment without you having to provide a reason for the amendment. So you should not “waste” your free amendment if at all possible.