WASHINGTON — On May 2, Politico published a draft of a Supreme Court opinion that would in effect overturn Roe v. Wade, the landmark 1973 case which secured the constitutional right to obtain an abortion.
Since the news broke, Americans have begun paying closer attention to their state laws dictating things like abortion access, birth control, and pregnancy.
In the wake of this, a viral tweet with more than 70,000 likes and retweets claims that in five US states, you can't get a divorce if you're pregnant. So let's verify.
THE QUESTION
Do laws in Texas, Arizona, Arkansas, Missouri and Florida require a married couple to wait until a child is born to get a divorce?
THE SOURCES
- Howard Brill, Professor of Legal Ethics & Professional Responsibility at the University of Arkansas
- Stacey Mullins, Attorney and Shareholder with GrayRobinson in Boca Raton, Florida
- Claudia Work, Scottsdale Family Law Attorney in Arizona
- Summer Masterson-Goethals, Trial Attorney, Masterson Law in Springfield, Missouri
- Kris Hayes, Attorney of Family Law, Balekian Kayes, PLLC in Texas
THE ANSWER
None of these states have any laws preventing someone from getting a divorce if they are pregnant.
However, a judge can decide to hold off on finalizing a divorce until a baby is born for paternity, child support or custody reasons. This is common in Missouri and Texas, but less likely in Arizona, Arkansas and Florida.
WHAT WE FOUND
The attorneys we talked with from each state said there are no statutes or laws on the books that prevent divorce while pregnant. However, they say that doesn't mean this doesn't happen.
Kris Hayes is a family law attorney in Texas. According to her, it's actually very difficult in Texas to get divorced if a wife is pregnant.
"In Texas, they just don't want to complete a divorce case without rules regarding child support, possession and access, conservatorship and then have to come back and re-litigate those things in a few months," Hayes said. She explained there's no hard rule as to why these decisions can't be made before a child is born, but the courts may want to wait to see if there are any special circumstances they need to account for like premature birth or health conditions that require more or less financial assistance.
"I think it's just because they don't want to address what they believe the future might be. They'd rather just wait and address what is the present circumstances," Hayes explained.
Stacey Mullins, an attorney in Boca Raton, Florida, agreed, but added that in the Sunshine State, this wouldn't necessarily cause the case to be put on hold.
"I don't think you could ever make a determination of child support, time sharing, or parental responsibility until the child was actually born," she explained. "But I can see reserving jurisdiction for the court to do that at a later date."
Another issue that arises in all of these states is the presumption of fatherhood. When a couple is married and pregnant, legally, it is assumed that the husband is the biological father. If a marriage is dissolved before that child is born, it may be born with no legal father and the child would lose certain rights to child support and custody agreements. This is the case in all the states mentioned in the viral tweet: Arizona, Arkansas, Florida, Missouri and Texas.
While Missouri and Texas courts tend to be more likely to delay the dissolution of marriage to avoid any of the potential complications mentioned above, Arizona, Arkansas and Florida attorneys are usually able to account for these issues in advance.
Arizona family law attorney Claudia Work stressed that Arizona's inclusion in this list is false.
"People get divorced all the time before babies are born," Work said. "If there's a dispute, there is a possibility that a divorce could last long enough for the baby to be born. But for the most part, judges aren't going to hold up divorces just to wait and see."
So while the duration of a divorce proceeding is going to vary based on the couple, judge, state and circumstance, it's not true that there is any law in Texas, Arizona, Arkansas, Missouri and Florida that prevents a pregnant couple from getting divorced.