Divorce During Pregnancy In Massachusetts

March 14, 2020 O'Connor Family Law Divorce

Even if a Husband is not the biological father of a child either born during the marriage or within 300 days of the divorce judgment, Massachusetts law presumes that the Husband is the biological father. Because of this, if you are trying to navigate divorce during pregnancy in Massachusetts, a whole different set of challenges can arise. While a few states will not permit a couple to end their marriage if the mother is pregnant, Massachusetts does allow expecting couples to finalize a divorce in these cases.

As a result, it is crucial to work with an experienced family law attorney who can help you through a situation where you are pregnant or your to-be-ex-spouse is pregnant, especially if it is clear due to the lack of ability that the child is not biologically the Husband’s. With over 35 combined years of exclusive family law experience, our attorneys have represented a number of cases where the Wife was pregnant with someone else’s child during the divorce process.


Here is just one scenario that our firm has dealt with: The Husband and Wife separated for about a year when the Wife showed up at the Husband’s house with divorce papers and said, “Sign these so we can be divorced. I’m leaving the state.” The Husband signed the divorce papers, and assumed he was divorced. Three years later, the Husband gets a notice from the Department of Revenue coming after him for child support for two kids associated with his ex-wife. The Husband is now remarried and has not “been” with the first Wife for over four years – he knows those kids are not his. However, the Wife never actually filed the divorce papers before she left. That meant, legally, those children were his responsibility as the mother’s current husband.

Our firm was hired by the Husband to actually get him divorced and alleviate him from the child support obligation. We had to find where the first wife was currently living and figure out who the biological father was. After doing so, we attempted to get the man acting as the father to sign an affidavit of paternity, but then he decided to get a paternity test done first and found out that he was not actually the father. As it turned out, the mother did not know who the biological father of the twins were. Eventually, after we had exhausted all other options for trying to find the actual bio dad (other than calling Maury), our client was able to get a divorce that cleared him as being the father and leaving him with no obligation to the two children who were absolutely not his.

The moral of the story is – always make sure you’re actually divorced and, if you or your spouse gets pregnant during or within the 300 days after the judgment of divorce, it can make your case much more complicated.

When a couple gets a divorce and is expecting a child in Massachusetts, unless you can agree to a parenting plan, the Court will not make any orders over the child until it is born. If the pregnancy was not known or disclosed during the divorce, a complaint for custody, support, and parenting time would need to be filed if the Husband is listed on the child’s birth certificate. If the Husband is not listed on the birth certificate or there is a question of who the biological father actually is, then a paternity action would need to be filed.


Although most people who are divorcing cannot imagine being with their to-be ex intimately, sometimes it happens and leads to pregnancy. Other times, there may be a pregnancy due to action with someone other than the spouse. Then there may be times where it’s unknown who the actual biological father is. Even if a couple has been separated for years and both get into separate relationships with the Wife becoming pregnant, if that child is born within 300 days of the divorce, then, Massachusetts law presumes that the ex-Husband is the father if another name is not put on the birth certificate.

If there’s a question of who the father is, a paternity action can be filed after the child is born. However, just because another man is the actual biological father of a child, that does not necessarily mean the Husband is off the hook. There are cases where it is known that the Husband is not the biological father, but the Court still requires the Husband to pay child support and expenses for the child.

If your wife is pregnant with a child or gets pregnant right after you divorce her, make sure you get an attorney on board right away who can help you navigate the situation to protect you.


Being pregnant when you are going through a divorce is not easy. A divorce is emotional enough without the extra hormones and health issues a pregnancy can cause. It’s also very difficult to be carrying a child of the man who is leaving you (or you are leaving him) because most people do not imagine having a child with a dream of having two households and sharing holidays.

Being pregnant with someone else’s child who is not your spouse’s can cause another host of problems. Perhaps your spouse is incredibly angry at any infidelity and your pregnancy is just another reminder of that whenever he sees you. The anger and resentment often leads to divorce cases being more contested and emotional. Then the issue of ensuring that the proper biological father has legal rights and responsibilities to the child becomes very important.

Unless there is an agreement between the parties, the Court will not typically enter any orders surrounding the care and custody of an unborn child. Children are expensive and, sometimes, especially if the mother is put on bed rest and cannot work, finances can become very tight. Child support cannot be ordered until after a child is born; however, a judge could award alimony if the situation warrants it.


Dealing with divorce during pregnancy in Massachusetts can be overwhelming for either side. The attorneys at O’Connor Family Law are here to help in these types of situations. We can provide guidance specific to the facts of your divorce case and help you draw up an agreement that protects you in relation to reserving your rights and relationship with your unborn child, provides financial support during the pregnancy, or helps protect you from being responsible legally for someone else’s child if it is not yours.