Modern Family Matters

Important Legal Considerations When Filing for Divorce While Pregnant

August 09, 2023 with Pacific Cascade Legal Season 1 Episode 104
Modern Family Matters
Important Legal Considerations When Filing for Divorce While Pregnant
Show Notes Transcript

Join us as we sit down with Attorney, Sarah Bain, to discuss the most important things to know when considering divorce while pregnant, and how it might affect your case.

•    Why a divorce may take longer and be more complicated if you file while pregnant.
 •    When you can file for a divorce during pregnancy; and when you can’t.
 •    Determining custody, parenting time and child support is affected when you are pregnant.
 •    What can’t be determined by the court until after the child is born.
 •    Whether paternity of the child can be established while you are pregnant.
 •    What happens if the spouses cannot agree on paternity.
 •    Weighing the timeline of a pregnancy with the timeline of a divorce. 

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  
Hi, everyone, I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Legal. And today I'm here with Attorney Sarah Bain to talk about pregnancy and divorce. Hey, Sarah, how you doing this morning? 

Sarah Bain  
I'm well, thanks, Steve. 

Steve Altishin  
Thank you for coming. This is really an interesting topic. And before we actually kind of start into it, can you just tell us a little bit about yourself?

Sarah Bain  
Yes, definitely. I work for Pacific Cascade Legal. And I'm a Northwest native. I've lived here in the Portland area for around 20 years now and went to the University of Oregon. My family, my parents were divorced. And so it's always been an interest of mine. I also have an undergraduate degree in psychology and working with people who are going through difficult times, is something that I feel like I'm skilled at, and I like being here and being a family law attorney is something that I really enjoy, and I have a passion for.

Steve Altishin  
I love it, I love it, then you're perfect for this really unusual kind of topic. We haven't talked about this particular thing before in any of our streaming stuff. But we know I mean, that's not an ideal situation. But the reality is that there are times when someone while pregnant just needs to get divorced. And the inevitable. People in this situation, you know, can be wondering, well, how is a pregnancy going to affect my the divorce process? And so Sarah, let's talk about the first obvious, you know, China shop bull in the room question, can you even file for divorce while you're pregnant? 

Sarah Bain  
Yes, in Oregon, you can definitely file for divorce when you're pregnant, although it's not an ideal situation. And divorce is hard at anytime. But add on top of that being pregnant, can be very emotional for the parties. But you know, sometimes a marriage comes comes apart when when one person finds out that they're pregnant. It could be financial stressors, it could be other stressors that are coming to fruition at that particular point in a person's life. But yes, in Oregon, you can get a divorce while you're pregnant. In some other states, there are other rules where either can't file the petition or cannot get a divorce judgment because the court thinks that the custody and parenting time issues are impossible to work out at that time. I think Texas and several other states have limitations. But Oregon does not there's no limit on being able to get a divorce when pregnant.

Steve Altishin  
The exact case for all kinds of cases, in terms of kind of sometimes people can file sort of these uncontested divorces with everything drafted and and all of the issues decided. I think they call it a simplified divorce in Oregon.

Sarah Bain  
No, so an uncontested or a simplified divorce is a process that you can go through in Oregon, if both parties agree that they want to get divorced, I think that the total assets of the parties need to be less than $30,000. And the parties need not to have children to file for that sort of a divorce. And that includes pregnancy. So if you're pregnant, the court sees you as having children. 

Steve Altishin  
So the short answer is, yeah, you can file. I mean, being pregnant doesn't mean you're not allowed to file. But there's sort of a shorter, not so short, I should say, more complicated answer, isn't there?

Sarah Bain  
There there are there is a more complicated answer. So the short answer is yes, you can get divorced. If you're pregnant and you follow the same steps that you would in a normal filing you, you and your spouse need to be Oregon residents. You need to have one of you needs to have lived in Oregon for the past six months. You would file in the county that you live in. Let's say you live in Multnomah County, you have lived there for over six months you would file at the Multnomah County Courthouse or have a lawyer help you do that. And then Have, you would need to serve your spouse with a petition for dissolution of the marriage as well as any other necessary paperwork, as you had said, you know, the only exception to that process was summary dissolution. But filing for divorce, when you're pregnant can be a lot more complicated, especially in respect to the custody parenting time and child support issues. It can take a lot longer to resolve a divorce when someone's pregnant. And it really often depends on the stage of the pregnancy. Usually a divorce takes sort of at minimum, about three months, I'd say more typical is around six months, some divorces that we have here in our office have gone on, unfortunately, for a year or more. And, and so, you know, you're you're only pregnant for the nine months. And so if you're pregnant, and it's very early in the pregnancy, it can be a little more complicated. But if you're towards the end of your pregnancy, let's say you're eight or nine months pregnant, through the process, you will have the baby and custody parenting time and child support will be worked out naturally, at that point through the core.

Steve Altishin  
Yeah, the oh, here's a kind of crazy question, do you have to tell the court you're pregnant? I mean, can you just sort of say, well, I don't want anything to do with this person. I'm not even gonna tell the court I'm pregnant.

Sarah Bain  
No, in every petition for dissolution, there is a place where you need to let the court know whether you're pregnant or not.

Steve Altishin  
That makes sense. That makes sense. You talked about and let's talk about a little bit more on the issues of custody, parenting time, child support, they too simple, obvious question, I guess. But why do you have to wait? Is there a reason that the court just doesn't say, Okay, your kid's going to be born on this day, and child support and parenting time because we will all be decided now and then just go into effect, then they they don't usually do it that way, do they?

Sarah Bain  
No, I mean, the problem with the child not being born is that there's no physical child to order support, custody or parenting time for. So the court waits until after the child's born to determine the parenting time child support and custody issues. However, I mean, that process can be a lot easier if you and your your spouse agree and you know, having some time while you're pregnant to plan out, okay, once this baby is born, what sort of a parenting plan do we want? And there's lots of resources through the state of Oregon, there's a whole packet on children ages birth to three on what appropriate parenting time looks like, in those cases, especially if mother is breastfeeding a child for the first few months, and what parenting time would look like in those sorts of cases. And we walk our clients through all of that, all of that when when we're talking to someone who's pregnant, or their spouse is pregnant, and they're trying to get a divorce.

Steve Altishin  
Yeah. Oh, when you talk about that, it just in my brain goes to whether there's such an uncertainty when the job's done board. Yeah. And, you know, I mean, the one way or the other. I mean, it could be what happens if you have twins, or, you know, what happens if you don't bring the child to turn I mean, or the Trump, you know, miscarried or whatever. I mean, it would be pretty tough to undo something if you've already done it beforehand, it's like it's like it's in this case, it's better to wait until you have more certainty.

Sarah Bain  
Exactly, but there are several paths to take perhaps if you're very early in your pregnancy, want to get the divorce done, you can settle all the divorce issues and have the judgment there and then go on and file a modification for custody parenting time and child support after the child is born.

Steve Altishin  
And paternity come into play on this. What if the the other spouse says no, my kid I mean, I'm not I'm not illegal pair and so I'm not gonna have anything decided.

Sarah Bain  
Definitely yeah, definitely. And and um, you know, that might be something that is, infidelity, etc, might be something that's ending the marriage and organism, no fault divorce state and we you know, people get divorced all the time where different things have happened. But if the paternity is called into question, the court can order a test for paternity after the child is born. There is an assumption that if you're married, and you and your spouse are together, that you that you are the parents of the child. There is an assumption by the court and so if no one brings it up and paternity is not called into question then your spouse is, is the the father of the baby, however, or mother, you know, depending on what gender, your spouse's. We support all kinds of families here at Pacific Husky legal. But yeah, if the spouses don't agree on paternity the court will have to decide. And, you know, the the father is usually presumed to be the father, if the child is born during the marriage, or within 300 days of the termination of the marriage. 

Steve Altishin  
Can the complexity go just beyond custody beyond child support, beyond parents, and basically beyond just the kid? Because it seems to me it'd be hard to decide even some property division, asset division, dead division issues, if you don't know that there actually will be a kid, or how many kids or or those kinds of situations I mean, what what if you say, Okay, we're going to split this, this and this. And then it turns out that you have two kids, and maybe there's that that issue should be split different. I mean, can can even issues like that get involved in maybe delaying the process? 

Sarah Bain  
Definitely, definitely I can, I can definitely see a case where someone finds out, they're pregnant, they're either in the middle of a divorce, or they are about to file a petition for divorce, you don't know what's happening, come to a start to come to a settlement agreement and go to mediation and try to work through some of these issues. And then, you know, are waiting and then come to a point where they find out that there's two babies, three babies, etc. I mean, people go through IVF. And sometimes there's a lot of complications and different things going on there. And I could see it core saying, Oh, no, you know, we need to put this off until the child or the children are born, or we need to work out some of these issues before we can continue with what we what the normal process would be.

Steve Altishin  
Can the mother or potential mother ask the court to make payments as part of the decree? I mean, especially if it turns out they're trying to not decide maybe custody, but the person, the divorce is gonna be in before the divorce before the birth, can can somehow the mother protect herself and make sure that the costs of the pregnancy maybe there's a complication, maybe whatever, is still going to be divided between the two of them? 

Sarah Bain  
Yes, I haven't. I haven't seen that exact case. But parties, parties agree to things or ask the court to different things, ask the court for different things all the time. And in a case where someone was pregnant, I would definitely ask the court for medical costs as part of the part of the divorce part of the divorce because, you know, as you might imagine, it can be very expensive to have a baby, especially if there's complications. My kids, it was a $3,000. And that we know, we were covered by MediCal, but in a lot of cases, we in most cases, actually where there's children involved. We have people agree in their judgment that, you know, mom and dad will pay 50% of the medical costs any out of pocket medical costs, that there may be, and I could in court typically order that they routinely order each parent to pay half of the uninsured medical costs. Or if you have a child with a disability, sometimes the court orders a an increased amount in child support to cover, you know, a child's regular medical needs. And if that's an issue, I mean, you would definitely want to talk to an attorney about that issue, because there's quite a lot going on there. But in general, I would see I definitely could see a court ordering half of the costs of the of the birth for both parties to pay.

Steve Altishin  
Looking kind of on the other side, can the spouse ask the court to either delay it any decisions or the thing that comes to my mind is in a in a child custody or child parenting time case. You know, they set out the stuff and you know what One of the clauses is you can't move away without permission to the court, can the spouse try to protect themselves by getting some sort of an order during the divorce, that you can't move away, because you're pregnant. And it's sort of, you know, ultimately would be the same kind of an issue, you would think.

Sarah Bain  
Interesting. We do status quo is for children who are in already with us on the earth. But the unborn child is a very interesting issue, I think a judge would definitely consider that and think and think about whether or not the judge would allow this person to move away while pregnant, because basically, you are separating yourself from the, from the child and not letting the parent the other parent have parenting time, which is not legal in Oregon. Under General Well, it's complicated, as you know, but in most cases, the court will order parenting time for both parents.

Steve Altishin  
Let's say that there's more there's already two kids and a pregnancy. Does can the court deal with those kids? Or is the court sort of required to wait and do the whole package? 

Sarah Bain  
No. So that's a very interesting question. And I could I see this question come up. I mean, I would think that, you know, in quite a lot of places where someone's pregnant, and they're getting a divorce, that they've been in this marriage for a long time with someone and may have older children, for sure. And while you can get your divorce finalized, while you're pregnant, you wouldn't be able to get the custody parenting time and child support issues, adjusted for the for the new child, but you definitely could have those issues adjudicated for the older children. What would happen this is that you would get a judgment, you would enter into a parenting plan with your spouse, and you would start to go along, and then you would file for a modification once the once the child was born. And basically, the Department of Justice would have to adjust the child support amount. And you would have to come up with a parenting plan that would be appropriate for a newborn, as well as a parenting plan that is appropriate for the older children. So your your parenting plan for the newborn may look much different than your parenting plan for the older children. It may be that for the older children, mom has one week dad has one week, but then for the newborn, baby, the newborn still nursing, you know, maybe dad only sees the newborn for a couple hours every few days, and then builds up to having the same sort of parenting plan with all the children over time.

Steve Altishin  
From a financial point of view, and especially, you know, attorney costs and attorney fees, and maybe the cost of negotiating, mediating, and everything kind of put together. pikey Mindy. And I said, Do you know, should I just settle? You? Should we settle all the other issues now? And then when the kid comes, we'll just settle that issue? Or we'll do it now. And then we'll modify it later? What would cost less? And I know, that's a crazy open ended question. But I mean, I imagine costs of doing it twice, maybe more than cost of doing ones are the cost of getting, you know, going all the way to mediation, and then knowing you have triplets and having to say we have to throw all that out and now start again. 

Sarah Bain  
You know, that's a very interesting question, Steve. And I tell clients all the time, they say, Well, what's my what's my billing going to be at the end of this? Or how much is this going to cost? And and if I go to my mechanic and I say to my mechanic, how much is this going to cost? My mechanic is able to open the hood of the car and look inside and go, Oh, okay, you know, this is wrong, this is wrong. We need a new one of these, and they can give me a pretty accurate estimate. When we're dealing with these more complicated legal issues and complicated families. It's very hard for me to give people a quote on cost because I'm not a mechanic and I can't It's like looking at a car without being able to open the hood and look inside and see what issues we're gonna get into down the line. Because a lot of the times it can seem very contentious and people can be very upset in the beginning of the divorce process, but then come to find out that they are pretty much aligned on what they want in terms of getting divorced. They, they understand how they want to split the property, they have an idea of how they want to co parent they have an idea of you know, who should have custody or whether they want to do joint custody. You know, in those cases, I mean, it really can be very, there can be complicated issues. But for the attorney, we can solve those issues pretty easily, easily, especially when the parties are willing to be reasonable and come to a settlement agreements. And in those cases, I would say, you know, go for it, there's, there's really, I mean, if we're going to come to a reasonable settlement, waiting, not waiting, I don't necessarily see a big change in cost. Where I do see a big change in the cost of a divorce with a pregnancy is if there's some really contentious issues. And in those cases, where we're going to hearings, and we're going to trial, and there may be temporary orders involved. In you know, the parents are not agreeing to custody of the older children, they're not agreeing on the property and division, they may or may not need to sell a house, those issues can be very complicated. I don't think that there's any harm in getting started. Because those issues can usually usually need to be resolved. Some things that we do for our clients is a client says, You know what, this is getting expensive. Can we wait on some of these issues, and in a pregnancy situation is very set up for for waiting, I mean, where we could start the divorce, we could start working on the property issues, we could start getting into settlement negotiations with opposing counsel. And then we could, you know, basically pause and say, Okay, we're going to wait until after the baby's born to resume what we're doing. And I think, I think a court would be, you know, willing to do that. So you don't always know sometimes they won't allow us that over. But, you know, and then there's the personal aspect of it, too. I mean, yes, well, it may cost you less, to wait to do the whole divorce all at once, especially if you're very early in the pregnancy. And nine months comes and goes and you know, you hopefully in that time, have settled some things with your ex you have, you know, maybe moved out, you've maybe worked on talking about a parenting plan, and you have a lot of those issues worked out and the court can decide, because the baby's born, the court can decide custody, parenting time and child support, it may be less expensive. However, you definitely want to think about, do you want to stay in a very unhappy or potentially abusive relationship while you're going through a pregnancy? I think both pregnancy can be a wonderful stressor in your life. But it also it is a stressor, it can be very stressful to be pregnant, especially when you're going through a divorce. And there's a huge amount of uncertainty about your future. So I think really personal temperament goes into play there. Are you needing to make this decision personally and to have the issues resolved to work out the divorce as soon as possible? Or is it not important to you, and it's more important to you to potentially save money and wave? 

Steve Altishin  
Yeah. We're almost out of time, it always flies too fast. But just final kind of thought in question is, whatever stage they're in, whether they're just realizing it, whether they're eight months pregnant, you as the attorney can handle all those situations. There's no better, you know, oh, you need to wait to this time, or we can't do anything until that time kind of thing. You can handle them from six weeks to eight months to, you know, almost nine months.

Speaker 1  
Definitely, at any stage of a pregnancy. If somebody's considering divorce, we definitely would like to, you know, help you out. And we can set up a consultation here at Pacific cascade legal. During our consultations, we go through, you know, different options. And I always think having a lawyer on board is a good thing, especially when you're going through a divorce that may be complicated for a plethora of reasons, but especially a pregnancy is something that I feel that you should speak to a lawyer about if you're considering divorce at all.

Steve Altishin  
I love it. Well, thank you so much. This is really, really interesting stuff. And I cannot say more than you know, thank you for sitting down today to talk about, you know, not only can you file for divorce when you're pregnant, but just how pregnancy can affect your entire divorce case, or in some cases, not. So thanks again for for joining us today. 

Sarah Bain  
You're welcome, Steve, thank you very much. 

Steve Altishin  
Well, and everyone else, thank you for joining and if anyone has any further questions on today's topic, and we can get you connected with one of our attorneys to talk about your particular situation. So until next time, stay safe, stay happy, be well

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.