Divorce & Adoption

By Stephanie Reid

Updated March 30, 2020

mother and daughter

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When a couple decides to get divorced during an adoption process, it does not necessarily halt the adoption, although the impact of divorce will depend upon the type of adoption involved. Parents of children whose adoption is finalized before the divorce will have the same rights as biological parents with regard to custody, visitation and child support. Divorce proceedings occurring prior to the finalization of the adoption could hurt the progression of the adoption, depending on the individual circumstances. There is also an interplay between adoption subsidies and the receipt or payment of child support.

Types of Adoption

There are a number of different types of adoptions, and the nature of the adoptive relationship can affect the impact of a divorce proceeding and the parents' rights. A consensual adoption occurs when the birth parents voluntarily relinquish their parental rights and agree to give the child to the adoptive parents. This agreement is contractual in nature, and the birth parents can require the adoptive parents to be married. A foster care adoption occurs when the birth parents' rights have been terminated by the state. The court has the ultimate decision over how the divorce will affect the adoption. A step-parent adoption occurs when the birth parent's new spouse wishes to adopt her children. The court will likely forbid this type of adoption upon the divorce of the step-parent and birth parent. An international adoption involves the adoption of a child from a country outside of the United States, and the adoption laws of that nation will control.

Divorce Before Adoption

Filing for divorce before the adoption is finalized could stop the adoption. In a consensual, contract-driven adoption, the birth parents are free to revoke their promise to hand over their child upon finding that the would-be adoptive parents have filed for divorce. Allegations of fraud could also occur if the birth parents believe the adoptive parents misrepresented themselves as a married, two-parent household when, in fact, they were planning to divorce. In a foster care adoption, the birth parents have no legal rights to contest the adoption on the grounds of the divorce of the potential adoptive parents. However, the judge, in his discretion, could invalidate the foster adoption if he finds that placing the child with the divorcing parents would not be in the child's best interests.

Divorce After Adoption

Once an adoption is finalized, the birth parents and courts no longer have any standing to contest the adoption on the grounds of the adoptive parents' divorce. The divorce proceedings will continue and the children are treated exactly as biological children under the law. The court will decide custody and visitation matters with the child's best interests in mind, and many states require divorcing parents to enter into a parenting plan detailing visitation and dispute resolution. Both adoptive parents are able to petition the family court for modifications to custody, support or visitation orders.

Child Support

The federal government has subsidies for adopted children known as Title IV-E Adoption Assistance. When adoptive parents divorce, it becomes an issue which parent is to receive this assistance and how these benefits affect child support calculations. The North American Council on Adoptable Children stresses that these payments are for the benefit of the children, not the parents. Further, the Internal Revenue Service explains that adoption assistance is tax exempt and considered public welfare benefiting the child. Parents who claim adopted children as dependents are required to pay child support at the same rate as parents with biological children despite the payment of any adoption assistance.