What Happens if a Woman is Pregnant in the Middle of a Divorce

It happens every so often that a woman going through a divorce becomes pregnant. This is particularly important because it raises the following issues: (1) Will the court allow the divorce to be completed while the woman is pregnant? (2) Is there a legal presumption that the husband is the father? (3) What happens if another man, other than the husband, is the father? (4) If the husband is not the father of the child, what must the court do to make a finding as part of the divorce that the presumption has been overcome as to the husband being the biological father?

TL;DR Summary for Pregnancy During a Divorce

• Pregnancy During Divorce: A woman must disclose her pregnancy in the divorce petition, as it affects the divorce process.
• Presumption of Paternity: The husband is presumed to be the father of any child born during the marriage unless proven otherwise.
• Divorce Process Delay: The divorce may be delayed until after the baby is born if pregnancy is involved, and DNA testing may be required to confirm paternity.
• Legal Steps: If the husband is not the father, a paternity action may be required before finalizing the divorce.
• Medical Information & Rights: There is no specific law requiring the wife to share medical details about the pregnancy or allow the husband in the birthing room against her will.
• Importance of Full Disclosure: It is crucial to inform your attorney about the pregnancy, as it is an important issue in the divorce.

Potential Court Outcomes: The court may either proceed with the divorce after DNA testing or delay the case until paternity is resolved.

Let’s start with filing the petition for divorce. Under Wisconsin law, the petition for divorce must state whether the wife is pregnant.

Sec. 767.215 – Initiating action; petition and response
(2) PETITION CONTENT. “Except as otherwise provided, in an action affecting the family, the petition shall state:

(b) The name and birthdate of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.”

At the time of the divorce, the court or your attorney will read from the petition for divorce, and the wife will be asked the following question based on the petition:

“Are you pregnant today?”

There is a legal presumption that if a child is born during a marriage, the husband is the father.

Wis. Stat. § 891.39 – Presumption as to whether a child is marital or non-marital
Whenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting that the husband is not the father has the burden of proving that assertion by a clear and satisfactory preponderance of the evidence. In such cases, the court shall appoint a guardian ad litem to represent the child whose paternity is questioned. Genetic test results showing a 99.0% or higher probability of parentage constitute sufficient evidence to overcome the presumption.

If you are married and become pregnant before the divorce is finalized, the court will most likely stay (hold open) the divorce proceedings until after the baby is born. The party alleging that the husband is not the father bears the burden of proof. The court will appoint a guardian ad litem to advocate for the child, and DNA testing will usually be ordered once the child is born. The court will not simply rely on the statements of the parties.

If DNA testing excludes the husband as the biological father, the court may require the mother to file a separate paternity action to determine the biological father before completing the divorce. In some cases, DNA testing alone may be sufficient for the court to find that the child is not a product of the marriage, but most courts require a formal paternity determination.

If, in the middle of the divorce, there is a question of parentage, there is no specific law entitling the husband to the wife’s private medical information or allowing him to be present in the birthing room against her wishes. Hospitals and medical providers are unlikely to permit such involvement if it is against the mother’s wishes.

If you have questions about divorce, custody, or being pregnant during a divorce, contact one of the experienced family lawyers at Karp & Iancu, S.C. today.