02 Oct Can You Get Divorced While Pregnant in Texas?
Pregnancy is supposed to be a time of planning and anticipation. When a marriage is falling apart at the same time, it can feel like two huge life changes are colliding. Many people in this situation put off getting answers because they assume divorce is off the table until the baby arrives. That is not quite how it works in Texas.
The short answer: yes, you can file for divorce while pregnant in Texas. In practice, though, many Texas courts will not finalize the divorce until after the baby is born. The final decree needs to address custody, visitation, and child support for every child of the marriage, and a court cannot fully do that for a child who has not been born yet. In the meantime, temporary orders can help protect you and your finances while the case moves forward.
Can You File for Divorce in Texas During a Pregnancy?
Yes. Nothing in Texas law prevents a pregnant spouse, or the spouse of someone who is pregnant, from filing a petition for divorce. The usual requirements still apply. One spouse must have lived in Texas for at least six months and in the county where the case is filed for at least 90 days. Texas also requires a waiting period of at least 60 days after filing before a divorce can be granted. Our post on how long a divorce takes in Texas explains the general timeline.
Filing early can make sense. It starts the legal process, allows you to request temporary orders, and gives both sides time to work through property and financial issues while waiting for the birth.
Why Do Texas Courts Usually Wait Until the Baby Is Born to Finalize?
A Texas divorce decree must deal with the children of the marriage. That includes conservatorship, which is the term Texas uses for custody, along with a possession schedule and child support.
Before a baby is born, the court cannot fully make those decisions. Child support, for example, is tied to the specific child and the parents’ circumstances. Medical needs, health insurance, and the possession schedule all depend on a child who is not here yet. For these reasons, many Texas judges will not sign a final decree while a spouse is pregnant. Instead, the case stays open until the birth, and then the final orders are written to include the baby.
This waiting period is not wasted time. Couples can often resolve property division, debts, and other financial issues during the pregnancy, so that the remaining child related issues can be finalized more quickly after the birth.
What Is the Presumption of Paternity When a Child Is Born During Marriage?
Texas law makes an important assumption about children born to married couples. Under Texas Family Code Section 160.204, a man is presumed to be the father of a child if he is married to the mother and the child is born during the marriage. The presumption also generally applies if the child is born within 300 days after the marriage ends.
This means that, in the eyes of the law, the husband is treated as the father unless that presumption is properly challenged. He will have the rights and responsibilities of a parent, including possible custody rights and a duty to pay child support. This is true even if the divorce is finalized before the birth, as long as the child arrives within that 300 day window.
What Happens If Your Spouse Is Not the Biological Father?
Sometimes the husband is not the biological father. When that is the case, it needs to be addressed directly in the divorce rather than left for later. If it is not, the husband may be legally treated as the father, with all of the obligations and rights that come with that status.
Texas provides a few ways to address this:
- Denial and acknowledgment. In some situations, the husband can sign a denial of paternity while the mother and the biological father sign an acknowledgment of paternity. The denial only works when it is paired with that acknowledgment, and together the two documents can establish the biological father as the legal father.
- Genetic testing and a court ruling. If the parties do not agree, the court can order genetic testing and decide paternity as part of the case.
Timing matters. Under Texas Family Code Section 160.607, a challenge to the paternity of a child with a presumed father generally must be filed within four years of the child’s birth, with narrow exceptions. Waiting can make an already sensitive situation harder to correct.
What About Temporary Orders, Medical Costs, and Support While the Case Is Pending?
Pregnancy brings real expenses: prenatal appointments, delivery costs, health insurance, and preparing a home for a new baby. While the divorce is pending, either spouse can ask the court for temporary orders. These orders stay in place until the final decree is signed, unless the court changes them sooner.
Temporary orders can address issues such as:
- Who stays in the marital home during the case.
- Who pays which bills, including health insurance premiums and medical costs.
- Temporary financial support for a spouse who needs it.
- Rules to keep either spouse from hiding, selling, or wasting community property.
Once the baby is born, temporary orders can also address custody, a possession schedule, and child support until the final decree. Our guide to the temporary orders hearing in Texas explains what to expect from that process. Eric Navarrette, who is Board Certified in Family Law by the Texas Board of Legal Specialization, has also written professional training materials for other attorneys on temporary orders hearings.
If you are worried about your safety or your baby’s safety, a protective order may be an option separate from the divorce. Our post on what a protective order is and when you might need one explains the basics.
Frequently Asked Questions
Can my husband stop the divorce because I am pregnant?
No. Texas allows no fault divorce, and one spouse cannot stop the other from getting divorced. A pregnancy usually affects when the divorce is finalized, not whether it can happen.
Will child support start before the baby is born?
Child support is generally ordered for a child who has been born. However, temporary orders during the case can address medical expenses, insurance, and support for a spouse during the pregnancy. Once the baby arrives, the court can set temporary child support. Our post on how child support is calculated in Texas explains the guidelines.
What if I did not know I was pregnant when the divorce was finalized?
If the baby is born within 300 days after the divorce, your former husband is generally presumed to be the father. A separate case may be needed to set custody and support, or to address paternity if he is not the biological father.
This article provides general information about Texas family law. It is not legal advice about your specific case. Divorce during pregnancy involves timing, paternity, and support questions that depend on your facts, so it is worth speaking with an attorney early.
If you are pregnant and considering divorce, call (940) 243-5050 or schedule a case review with N Family Law to understand your timeline and protect your rights and your baby’s.