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Home / Articles / Escaping Violence / Pregnant Survivors Forced to Stay Married in These States

Pregnant Survivors Forced to Stay Married in These States

You could be denied a divorce until your baby is born, even in cases of abuse

pregnant and abused

If you’re pregnant and living in Arizona, Arkansas, Missouri or Texas and you file for divorce, the judge may deny your divorce until your baby is born. The reason? Once the baby is born, you can confirm who the father is and work out child custody, support and visitation issues.

That could put you in a dangerous situation if you’re a domestic violence survivor. Intimate partner violence increases the risk of preterm birth and other pregnancy complications for pregnant women, as well as puts them at risk of death. Homicide was found to be the second-leading cause of injury-related death for pregnant women after car accidents. 

Abusive partners may force victims to become pregnant as a method of control and simultaneously, could lie about not being sure they’re the father as a tactic to delay the divorce per the above. 

“Avoiding being trapped [with an abuser] is easier with no kids. With kids in common with an abuser, it’s significantly harder, if not impossible, to keep an abuser out of their lives because that person has the constitutional right to parent, and the courts are especially assiduous about protecting men’s rights more so than women’s rights,” says Kristin Fitzharris, managing attorney in the domestic relations and immigration unit at Southern Arizona Legal Aid in Tucson.

Each state and each person’s situation is different, so no blanket advice holds true for everyone facing this scenario. For help navigating the process, it’s best to contact an experienced family law attorney. If you can’t pay for an attorney, you can contact a domestic violence advocate or legal aid office for assistance. And these are some strategies that could help.

Obtain a Temporary Restraining Order or Protective Order

“When an expecting mother is stuck at home with an abusive spouse, alternative options do exist,” says Chris Hamblin, an attorney with the Law Office of Lisa Richardson, P.C. in Round Rock, TX. A temporary restraining order and/or a protective order can prevent your spouse from calling or contacting you, coming on your property, threatening you, bothering you at work, sending you mail, or taking away your children if you have custody.

Separate From Your Spouse

Holly Davis, a family law attorney and founding partner of Kirker Davis in Austin, TX, says, “I strongly recommend that a woman experiencing domestic violence physically remove herself from the situation, contact authorities, and reach out to an attorney—whether or not she is pregnant.”

Hamblin agrees that leaving your spouse could be an option. “Keep in mind, spouses are not required to reside with each other during the divorce process, especially if there are concerns of family violence in the household.”

Of course, it’s common for abuse to escalate when a survivor leaves, so deciding if or when to leave can be complicated. 

If you leave, it can also be tricky to decide if you should legally separate or just live separately. In Arizona, for example, you can file for legal separation, but your spouse can counterclaim divorce. “Then it’s a divorce. There’s no way to force through a legal separation,” Fitzharris said. So, you could have to wait until you give birth to resolve custody issues. 

File For Divorce and Get The Process Started

Even if you live in a state where your divorce can’t be granted until after your child is born, you may be able to file for divorce. That way, you can begin negotiations and possibly work out child custody and child support arrangements for any other children you have. Starting the process right away increases the likelihood that your divorce will be final soon after your baby is born.

Seek to Have a Mandatory Waiting Period Waived

To speed along your divorce, one strategy you can try is having any mandatory waiting period waived. In Texas, for example, people must wait 60 days before their divorce can be granted. “This means the soonest a spouse can get a divorce granted is 61 days,” Hamblin says. Divorce cases in Texas often get delayed even longer, especially in urban areas, since the dockets are crowded. 

But, you can request an exception to the mandatory waiting period if your spouse has been convicted of a crime involving family violence, or if you have a protective order against your spouse for violence during the marriage.

 “However, the courts have the sole discretion to grant or deny the waiver of the mandatory waiting period even when family violence is present in the household,” Hamblin said. “Sadly, if a mother is expecting, the courts are unlikely to waive the waiting period or even grant the divorce until the child is born.”

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Consider Whether Waiting to Divorce Is Better

It seems like restrictions on when a woman can divorce impinge on women’s rights, but Davis points out some of the nuances: “Speaking as someone who is pro-choice and pro-child-welfare, I see this restriction on finalizing a divorce decree as a very pro-child move.”

She notes that restrictions on finalizing divorce focus on the legal and financial agreements—such as dividing assets and working out child support and child custody—between two spouses. “If the pregnancy ends in abortion or miscarriage, that will change the child support calculus, and the process of negotiating a divorce decree would have to start all over again—a difficult process at a difficult time,” she said.

Plus, confirming paternity means the right person pays child support and may have custody rights. 

The restrictions on divorce don’t require you to stay with your spouse. “Personal safety is imperative, and nothing in this restriction prevents a woman from doing that,” Davis said.