Divorce & Pregnancy Law in California

By Claire Gillespie

Updated August 06, 2018

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Can you get a divorce while pregnant in California? The answer is yes. Unlike some states, you can file for divorce in California if one party is pregnant. However, the divorce – known as dissolution of marriage in California – cannot be finalized until the baby is born. This is because the court prefers to establish paternity and make decisions about child custody and support for all children of the relationship at the same time. It avoids coming back to court after the baby is born for further proceedings.

Divorce While Pregnant in California

Although you can't get a divorce – dissolution of the marriage – while you or your spouse is pregnant in California, you can obtain a legal separation, but you will have to file for divorce after the baby is born. The grounds for a legal separation are the same as those for divorce. To file for legal separation, one party must reside in the county where the papers are filed at the time the case is started. However, there is no required length of residency as there is for divorce.

If both spouses want to legally separate and are in agreement on issues of property, debt, custody, support and all other issues relevant to the divorce, the case should be very straightforward. In most instances it can be handled by mail and with little or no contact with a judge. If you then decide to seek a divorce after the baby is born, you can file an Amended Petition and ask the court for a dissolution of marriage.

Alternatively, you could file for divorce during the pregnancy, but wait until after the birth to finalize matters. California has a mandatory six-month waiting period before a divorce can be finalized, so there is a strong possibility that the child will be born during the waiting period in any case. But if you and your spouse comply with all instructions and do everything you can to avoid delays, the entire divorce process may take only a few months. Obviously, this varies depending on the circumstances, with more complex cases taking longer to resolve. Note that you don't have to wait until the end of the mandatory six-month waiting period for a dissolution to resolve issues relating to children or property.

A summary dissolution is a streamlined process for getting a divorce, with no trial or hearing required in California. If you or your spouse is pregnant or there are other children of the relationship, you cannot go down that route.

California Grounds for Divorce

Many people wonder: Is California a no-fault state when it comes to divorce? In fact, California was the first state to pass no-fault divorce laws. The main benefit of this is that the entire divorce process is easier, more straightforward and less costly. A no-fault divorce means you have no right to refer to any wrongdoing on your spouse's part as a reason for the divorce. The only grounds for divorce and legal separation in California are irreconcilable differences and permanent legal incapacity to make decisions. Irreconcilable differences must have caused the irremediable breakdown of the marriage, but this ground requires only a statement of this fact and no further details or explanation from the parties.

On the other hand, permanent legal incapacity to make decisions requires substantiated proof, usually in the form of the testimony of a psychiatric or medical professional. The spouse must have been legally incapacitated at the time that the divorce petition was filed and will never again have the legal capacity to make decisions.

Filing for Divorce in California

If you want to file for divorce in California, one of the spouses must have lived in the state for at least six months immediately before beginning the divorce proceeding. Also, one of the spouses must have lived in the county where the divorce is to be filed for at least three months immediately before filing for divorce.

The divorce process in California begins with a Petition for Dissolution of Marriage. This document, together with a Summons, is filed with in the superior court in the county where you or your spouse has lived for the past three months. The filing spouse is the petitioner and the other spouse is the respondent. The petitioner must serve the respondent with copies of the petition and any other related paperwork. Check with the clerk's office at your county court for information about the forms you must file and pay the filing fee at the time of filing. As of July 2018, the fee for filing a Petition for Dissolution of Marriage in California is $435. If you can't afford the filing fee, obtain a form to request a fee waiver from the clerk's office and complete the form according to the instructions.

If you want the court to help you resolve issues relating to property, debt or children of the marriage, you should also file a Request for Order along with your petition to get a court date scheduled. However, remember that the court won't finalize the dissolution of the marriage until after the baby is born.

Responding to Divorce in California

The divorce Petition and Summons forms may be served on the respondent in different ways. One option is by personal service, where a neutral third party like a sheriff or special process server personally hands the paperwork to the respondent. You can also serve the respondent by mail, enclosing a Notice and Acknowledgement of Receipt form, which the respondent has to sign and return within a reasonable period of time, typically 20 days. The respondent has a specified time frame in which to respond to the divorce petition. If the respondent is served personally, he has no more than 30 days from the date of personal service to file her response. The response is served on the petitioner or the petitioner's attorney, if he is represented.

Spouses have different options for resolving issues in a divorce case. If one or both of you are represented by an attorney, you may have a voluntary settlement conference, typically held at an attorney's office, where you can try to resolve the issues together. This avoids a court trial later on.

A mandatory settlement conference may be ordered by the court and held at the courthouse. You may reach a provisional settlement, but wait for input from the judge before it is finalized. The divorce process can take many different paths, and what is right for one case isn't right for another. If you have an attorney, she will advise you on what is best for you, taking into account the complexity of all the issues.

Requesting Temporary Custody or Support

The court will not finalize your divorce while you or your spouse is still pregnant, but you may request a temporary order on custody or child support. If the petitioner files a request for a temporary order, she may do this at the same time as the divorce petition is filed and served or at a later date. If the respondent files a request for a temporary order, he may do this at the same time as the response to the divorce petition is filed and served, or later.

If you file a form requesting an order for child support, you have to include an income and expense declaration. The request for a child support order and your declaration is filed with the court and served on the other spouse so that he knows the hearing date and time and what the order is seeking and why.

You and your spouse can settle issues informally any time you wish, regardless of who filed the request for support and when the hearing is scheduled for. If your order is for child custody or visitation, you must also follow a mandatory mediation process, which both spouses are required to attend. A trained, experienced mediator will try to help you and your spouse resolve custody and visitation issues. If this is unsuccessful, a court hearing will be scheduled.

Emergency Child Custody Hearing

Either spouse may request an emergency child custody hearing for custody or visitation. There must be a showing of immediate harm to the child or immediate risk that the child will be removed from the state of California. Immediate harm to the child includes having a parent who has committed acts of domestic violence and sexual abuse of the child.

The court decides whether there are sufficient grounds for an emergency order, based on the paperwork filed with the court. If your spouse has given you notice for an emergency child custody hearing, as he is required by law to do, you are entitled to be served with all paperwork relating to the request before the judge sees it. You have the right to submit a written response to the court opposing the request for an emergency order.

California Child Support Payments

Under California law, a parent’s most important responsibility is to support her child, and financial support should be based on the parent’s income, how much time she spends with the child and the child’s best interests. A child has to be born for child support payments to be ordered, so it makes sense to wait until the baby is born to try to resolve child support issues through the court.

The theory is that the parent who has the most parenting time, or visitation, has the greatest need for child support from the other parent. Child support terminates when the child reaches the age of 18, unless he is still a full-time high school student and lives with a parent, in which case child support terminates when the child turns 19 or graduates from high school, whichever happens first.

When child support payments are calculated in California, several factors are taken into account, including the number of children who are entitled to support from that parent, the amount of parenting time each parent has with the children, and each parent’s net disposable income.

In California, a computer program is used to work out how much child support a parent should pay. This gives the court a guideline amount, but it can be deviated from if there is a proper, legal reason to do so. The judge must have admissible evidence that shows the guideline formula would be unjust or inappropriate in that particular case. Examples include if the parties have mutually agreed to a different amount of child support; the person being ordered to pay child support has an extraordinarily high income; or the custodial parent is not contributing the majority of her resources to the child.

The court does allow parents to agree to an amount of child support that is less or more than the guideline amount, but it is less likely to approve an amount less than the guideline amount as this may not be considered sufficient to meet the child's needs and would be contrary to acting in the child's best interests. On the other hand, the court is unlikely to object to an amount higher than the guideline amount.