Attorney
You can follow every rule, draft a hundred different plans, and think you’ve accounted for every possibility… and then life throws you something wildly unexpected.
For people in the Albuquerque area who are going through a divorce, a surprisingly common unexpected event is finding out they are, in fact, expecting. Getting pregnant while getting divorced is not something you typically plan to do, but to quote Jurassic Park, “Life, uh, finds a way.”
And though he’s no Jeff Goldblum, Attorney Bob Matteucci is a seasoned family law attorney who is ready to help you meet this moment and move forward with your plans to divorce.
Can You Get Divorced While Pregnant?
The first question the Matteucci Family Law team is typically asked when a client who is getting divorced finds out they or their soon-to-be-ex is pregnant is: can we still get divorced?
The short answer is yes. New Mexico does not bar expecting couples from getting divorced. Some states do, but we aren’t one of them.
However, pregnancy may change the way your divorce plays out. You can move forward with dividing property, addressing spousal support, and untangling finances. But decisions involving the unborn child must either be:
- Reserved until after birth, or
- Handled based on the legal presumption that the husband of the pregnant spouse is the baby’s father, with an understanding that custody and support may need to be adjusted after the baby arrives.
In other words: you can keep moving forward, but the court insists on leaving space for the new life that is on the way.
Who’s the Father?
Once we talk through the timing, the next questions our clients ask are typically about paternity.
New Mexico’s 300-Day Rule: When the Law Assumes Parenthood
There’s a rumor going around that married men are presumed to be the father of any child born to their spouse during the relationship. Spoiler alert: it’s true.
The law was passed in order to make things simple in the days before DNA testing, but it’s still on the books. And it actually applies to any child born within 300 days of a marriage ending.
This means that even if your divorce is finalized before the baby is born, the law still presumes you and your former spouse are the parents. This matters for a lot of reasons, but consider how important it is if there is some sort of complication during delivery and someone needs to step up and make healthcare decisions on behalf of the mother and/or the child.
In the context of divorce, this presumption allows cases to move forward instead of forcing a couple to stay married until the baby arrives and a DNA test can be ordered and approved by the courts.
What If the Spouse Is Not the Biological Parent?
The presumption of paternity becomes more of a hindrance than a help when the soon-to-be-ex spouse is not the biological father. The divorce can still proceed, but it realistically cannot be finalized until the court has DNA evidence proving paternity. Otherwise, the husband will be presumed to be the father, and will be required to make child support payments and share custody.
This testing must be done by a state-approved testing service. Results from over-the-counter tests or tests done through companies like 23andMe will not be recognized by the courts.
Serving Families with Dignity & Compassion
Life has found a way into your divorce, now it’s time for you to find a path forward. With the Matteucci Family Law team at your side, you can meet this moment with clarity about how a pregnancy will impact your case and your post-divorce life. Contact us today to set up a meeting.