Sometimes a couple or one of the spouses realizes that a divorce is best for their situation especially if the parties to the divorce realize that there is no way they can stay together any longer. However, if a woman is pregnant it can create some issues with getting an official declaration of divorce. Under Arkansas law, a petition for divorce can be filed while pregnant, however, it will not be granted until after the child is born. The logic behind this is to ensure that issues related to child support and custody are appropriately considered before the final divorce declaration. The law also presumes that the husband is the father of any baby conceived during marriage. Throughout history this has been challenged and has since relaxed a bit, allowing a man claiming to be the biological father of a child to file a paternity suit, even if the child already has a presumed father and is a part of a marital family. A judge will still need to determine if there is enough evidence to support this claim and bring it to court. Additionally, a woman can challenge the presumption by admitting that her husband is not the child’s father. The presumed father can do the same if he believe he may not be the biological father. Although Arkansas does not have a time limit on when the presumption can be challenged, it is best to challenge it as soon as possible. Raising the issue of paternity early on during the divorce proceedings is best to avoid lengthy, drawn-out legal issues and expenses.
This is not to say that the time you are pregnant cannot be spent getting things in order for the divorce. For example, while you are waiting for the child to be born, the divorce petition can be filed to start the process helping with some of the mandatory waiting periods. These waiting periods can go towards the required 18 months living separately requirement for no-fault divorces, the 30-day response period of the other party to the divorce after the Complaint for Divorce filing with the courts. Side note: Even if your spouse responds sooner, the divorce will not be granted until the 30-day period has been met since the date of filing. You can also use this time to work through negotiations on the major issues related to the divorce such as property division, spousal support, custody and child support. If the issues can be pre-determined, a draft of the agreement can be written ahead of time. When you get to the point of obtaining the divorce and the judge agrees that the custody and support are in the best interests of the child and the property division is fair, he or she will make the agreement officially a part of the divorce settlement. If the divorce is contested, you can still move forward by providing any necessary financial information, temporary order requests, and etcetera to prepare for the final hearing.
Another side note: The presumption of a husband being the father of the child does not apply to unmarried couples. Paternity may be challenged after the initial support and custody orders are in place.
Contact Kevin Hickey Law Partners to help with divorce filings and preparation during the pregnancy to aid in a smooth transition once the baby is born. Call today to schedule a consultation. We have offices in both the River Valley, 479.434.2414, and Northwest Arkansas, 479.802,6560.