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Heather Jones

If you have come across this article during an internet search the chances are good that you are pregnant and that you want to get a divorce in the state of Illinois. A lot of people wonder if they can get a divorce while they are pregnant in Illinois. The short answer is yes, you can get a divorce while you are pregnant in Illinois. You can file for divorce in Illinois while you are pregnant. You can be granted a divorce in Illinois while you are pregnant. If you are pregnant, you are not legally barred from divorcing in Illinois unlike some other states. The pregnancy can present some more unique issues to be considered during your divorce process and you should absolutely consult with an experienced Illinois family law attorney to assist you when you are planning for and going through your divorce. Read on for more information on how to prepare for divorce during pregnancy.

Who is the Father?  

The first issue to be addressed when you are pregnant and preparing for a divorce is if your current spouse is the biological father. If your spouse is the biological father then you may want to wait for a final decree of divorce. The reason for this is because you will want to include issues like child support, physical placement and legal custody of the child in the final decree of divorce. If your current spouse is the biological father then it would be better to resolve all these issues in the same proceeding rather than having to spend more time and money going back to court for additional orders after the child is born. There are some times when this is more difficult, for example if you are in an abusive marriage, but generally if you let the court know what is going on, they can schedule things like hearings and final orders out to a later date in order to address any requests that will be made after a child is born. The best possible approach here, especially if you believe that waiting after filing will present problems, is to be scrupulously honest with both your family law attorney and the court.  

If you know beyond a shadow of a doubt that the child is someone else’s you may not want to wait for the divorce to come through. Illinois, like many states, presumes that a child born during a marriage is the offspring of the two spouses. Generally, it is referred to as the “presumption of paternity.” If a child is born during a marriage and one or both spouses want to make it clear that the child is not the product of the union, they will have to overcome the presumption of paternity by “disestablishing” the male spouse as the father. Sometimes it is relatively easy to disestablish the father and other times it can be very difficult. The relevant law, the court system and, very importantly, the state child support agencies, want a child to have two parents who are financially responsible for the child. What this means is that even if the court and the child support agency know that your spouse is not the father, they can still decide that your spouse is on the hook for financial support and has rights to custody and visitation, even if it is not their biological child. The courts differentiate between legal parentage and biological parentage. Getting the divorce finalized before the birth of the child will remove this issue. For more information on presumption of the father read our article, What is a Presumed Father in Illinois.

If the child is someone else’s, you will need to have them sign an acknowledgement of paternity or ask the court to order paternity testing if the alleged biological father is not cooperating. IT is recommended that you do not agree to a casual child support or custody arrangement. You should ask the court for an order regarding support, custody and visitation in order to have it properly enforced if you run into problems later on.  

If you get a signed acknowledgement of paternity from the child’s biological father and can present that acknowledgment to the court during your divorce, the court will not order that your spouse pay child support or award your spouse any custody or parenting time. Your soon to be ex-spouse will also have to agree to terminate his parental rights as part of this process. As Illinois is a no-fault divorce state, infidelity is not considered to be a legal issue when the divorce is filed for.  

A Pregnancy Will Not Stop You from Divorcing but it Will be a Bar to a Simplified Divorce

Illinois does allow something called a “simplified divorce.” A simplified divorce, otherwise called a joint simplified dissolution of marriage, is where the spouses have been married for less than 8 years and there no children from the marriage and, that the wife is not currently pregnant by her husband.   People choose the joint simplified dissolution because they are able to reach agreement between themselves on the division of assets and debts and there are no child related issues to be dealt with.  

Child Custody During Pregnancy

It is not unusual for the wife to be pregnant when filing or going through a divorce. Illinois law does allow for the spouses to request and for the court to issue orders regarding support and custody of the unborn child. Once the child is born, the parties can return to court in order to establish a reasonable parenting plan. Naturally while the child is still a newborn this will mean that any type of extended period away from the mother will be off the table but visitation will be permissible. Longer visits can be accomplished as the child grows and is able to be away from their mother later on.  

It can’t be easy to be pregnant and ready to divorce but you do have certain rights and Illinois does not bar you from filing for and being granted a divorce while you are pregnant. While some additional issues are presented and you do not qualify for a simplified divorce, you can still make it through the process and move on with your life. If you are pregnant and considering divorce or if you have already filed and need guidance on navigating the divorce process, feel free to give O’Flaherty Law a call. O’Flaherty Law has a group of highly experienced Illinois family law attorneys who would be happy to help you.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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