While Megan Fox and Brian Austin Green’s reported Hawaii “babymoon” seems to indicate their divorce plans are OFF, Fox’s pregnancy following her August 2015 divorce filing raised an interesting question. What happens if you get pregnant after filing for divorce? According to Dallas Divorce Attorney Alissa Castro, pregnancy can complicate and delay the finalization of a divorce in Texas.
As Alissa explains, “In Texas, the Family Court puts the best interests of the child first. There are several questions that typically can’t be answered until the child is born, and the judge needs this information prior to ruling on issues pertaining to the child’s future.”
In order to make decisions pertaining to child support, possession, access and conservatorship of the unborn child, the judge will need to clarify several issues first:
- Parentage. Is the husband the biological father? Though genetic testing can be performed in utero, a Texas court may not order genetic testing until the child is born.
- Rights and duties. Whom the child resides with and when typically can’t be finalized until the child is born and released from the hospital.
- Medical issues. Does the child have any health care needs (physical, developmental, psychological, etc.) that need to be taken into account? There is essentially no way to estimate the costs and logistics associated with medical considerations until the child is born.
“The Texas Family Code doesn’t explicitly state you can’t finalize a divorce when a couple is expecting a child. However, if you look at Texas case law, the courts in Texas typically agree that they will not render a final judgment, because they can’t name parents as conservators of an unborn child,” Alissa says.
That’s not to say you can’t put the wheels in motion for your divorce when you’re expecting.
Hash Out Financial and Property Issues in the Mean Time
If you’re convinced you want to end your marriage, there is no harm in filing for divorce – especially since there is a minimum 60-day waiting period from the date of filing for divorce before a divorce can be granted in Texas.
According to Alissa, “Before the baby is born, you can proceed with finalizing much of the financial and property-related aspects of the divorce settlement. This portion of the divorce settlement is similar to some post-marital agreements – or postnups – where a couple clarifies separate property and/or contractually agrees to partition property, so there is no additional community property to divide after a set date.”
Had Fox and Green been unable to reconcile, Green may have ended up better off financially by waiting to finalize the financial and property aspects of his and Fox’s divorce.
“Megan Fox appears to be the primary breadwinner in the relationship, especially with the June 2016 release of her new blockbuster film, the Teenage Mutant Ninja Turtles sequel, and her recent role in the Fox Network comedy ‘New Girl.’ In Texas, Green would have a claim for a portion of her earnings from those projects,’’ explains Alissa.
So, CAN you get a divorce if you’re pregnant in Texas?
According to Alissa, “In Texas, the likelihood that a judge in a Texas Family Court will grant a divorce prior to the baby’s birth is extremely low. In most cases when a party to a divorce is pregnant, the best way to expedite a divorce in Texas is to hire an experienced divorce lawyer, file for divorce as soon as possible and finalize any financial or property related concerns before the child’s birth.”
Side Note Regarding Family Violence: While not the case with Fox and Green, if you or your spouse are pregnant and domestic violence or incarceration of your spouse is a factor, there may be steps you can take to protect yourself and the unborn child as well as expedite your divorce. Alissa recommends speaking with a reputable family law attorney in Dallas (or the city where you reside) to discuss your options and secure a protective order when appropriate.
Alissa also recommends this past post – “Why They Stayed and How You Can Leave” – for additional resources pertaining to domestic violence.