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Missouri, Arkansas, Texas, Arizona rarely finalize divorce during pregnancy | Fact check

Nate Trela   Paste BN
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Corrections & Clarifications: This story and headline were updated to clarify that several states have no legal prohibition on divorce during pregnancy, though as a matter of practice, it isn't typically done. The rating on this claim has been updated from True to Partly false.

The claim: Divorces cannot be finalized in Missouri, Arkansas, Texas or Arizona while a woman is pregnant

A Feb. 26 Instagram post (direct link, archive link) includes a picture of what appears to be a pregnant woman’s belly and a stethoscope.

“As it stands, Missouri judges cannot legally finalize a divorce if a woman is pregnant,” reads part of the post's caption. “Three other states have similar laws: Texas, Arizona, and Arkansas.”

The post was liked more than 10,000 times in a day.

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Our rating: Partly false

Divorces cannot be finalized in Texas while a woman is pregnant, as noted in legal paperwork widely used in state divorce proceedings. The other states do not explicitly ban it, but their judges overwhelmingly – if not entirely – hold off on finalizing divorces until pregnancies are done for technical and procedural reasons, according to attorneys practicing family law there. In all of the states, a married couple can file for divorce at any time and get temporary orders on child-related issues.

Laws, demands on court lead to delays before approving child support, custody agreements

In all four states named in the post, the question of whether a divorce can be finalized while a woman is pregnant hangs on how their respective laws say pregnancy must be disclosed when seeking a divorce and how issues of paternity and financial support are addressed by judges.

In Texas, the question is dealt with clearly on the paperwork filed to seek a divorce.

If “the wife in this marriage is pregnant. I understand that I cannot finish the divorce until after the child is born,” reads form FM-DIVB-100 in the section where pregnancy must be disclosed. This form is not an official state document but was posted to TexasLawHelp.org and is provided for public use across the state, with Dallas County and the Texas State Law Library among the entities pointing people to use it.

The note about pregnancy delaying divorce finalization is based on an interpretation of several sections of state law around divorce, according to Staci Maloney, a spokesperson for Texas Legal Services Center, the legal aid nonprofit that manages TexasLawHelp.org. She noted a new state law has been proposed to address this situation that would prohibit judges from waiting to finalize a divorce because of an ongoing pregnancy.

Texas law does allow for temporary orders to be put in place for support and visitation of previous children, according to a post from Benson Varghese, the founder of a Texas law firm with a family practice. The courts do not have jurisdiction over children until they are born, and can therefore make no decisions on issues such as child support, child custody or even paternity, the post states.

Fact check: Texas abortion laws specify no charges for the woman seeking an abortion

In the other three named states, judges overwhelmingly wait for pregnancies to end before issuing final divorce decrees. But the common practice may be about practicality and convenience instead of being a settled question of law, experts say.

For example, a  1973 Missouri law explicitly requires a divorcing couple to address “whether the wife is pregnant" in a filing, and also requires "any arrangements for the custody and support of the children" to be part of the divorce agreement. Judges have taken that to mean they can't issue final orders in the divorce until the pregnancy is finished, according to a Kansas City Star analysis of the issue.

“I suspect that the real reason they aren’t granting divorces comes down to efficiency,” Barbara Glesner Fines, a dean emerita of the University of Missouri-Kansas City School of Law, told FactCheck.org about the lack of finalized divorces in Missouri. “If the court waits until the child is born, issues of divorce, property division, parentage, parenting plans and support can all be determined in one action. If the court determines these issues while a parent is pregnant, there will have to be a second court case after the child is born. The court will have to reconsider all the same complicated factors for custody and support that it did in the first action, and it is possible that the custody and support decisions for any children involved in the first action might need to be altered.”

In Arkansas, the delay is similarly in place in part because of the extra work involved with modifying orders after the baby is born, according to a post by Kevin Hickey, a family law attorney. Couples can negotiate orders for children they already have, along with property division and spousal support, and they can also start working toward a requirement to live apart for 18 months to get a no-fault divorce.

Arizona does not have a delay codified in law, according to Barbara Atwood, co-director of the Family and Juvenile Law Certificate Program at the University of Arizona.

Nevertheless, divorces aren't typically finalized during pregnancy to simplify the process of creating orders on child support, parenting time and decision-making, said Judie Rettelle, an attorney at Phoenix law firm Colburn Hintze Maletta. She told Paste BN the financial cost and time needed to move new cases forward and the resulting delays in establishing paternity and child-related orders effectively keep judges from finalizing divorces while a spouse is pregnant. In more than 20 years practicing family law, she said she hasn't seen a divorce finalized before a child is born.

Atwood and Ken Fields, a retired state judge who worked in family court three decades ago, also said they didn't recall a case where a divorce was finalized during a pregnancy. Rettelle and Fields also said they aren't aware of any explicit ban in state statute, however.

Retelle also stressed that a spouse does not have to stay in an abusive situation while waiting for the divorce to be finalized. Protective orders and other measures can be issued to get away from domestic violence while the divorce is pending.

Paste BN reached out to the social media user who shared the claim for comment but did not receive a response.

Our fact-check sources:

This story was updated to add new information.

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