Virginia Cornwell is a Columbus Ohio Family Law Attorney who assists clients with family law matters throughout Ohio.
Trying to end your marriage in Ohio can be difficult if the wife is pregnant. Difficult, but not impossible.
Ironically, the difficulty does not come from any obstacle in the law, but rather from the practices in your county, or from the preferences of the Judge in your case. Ohio law does not contain any authority for a Judge or Magistrate to refuse to grant a divorce, dissolution, annulment or legal separation on the basis of pregnancy. Nevertheless, for several reasons, many Ohio courts will delay granting the divorce (or ending the marriage) if the wife is pregnant.
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One reason that Ohio courts will sometimes decline to grant the divorce until the child is born is so that child support will be established. The court does not want the child to go without support for several months while paternity is established and support is ordered through the child support enforcement agency.
Another reason the court may be reluctant to grant the divorce while the wife is pregnant may be that the Judge does not want the mother and father to have to go through yet another court action to establish parentage, support and parental rights. In such cases, it is possible that the domestic court believes that if the paternity is not established in the divorce case, that the father will have to seek parental rights in a juvenile court case. The domestic court Judge may also be concerned that if the father has to file a separate action in juvenile court to establish paternity of the child, he will be disadvantaged. For various reasons, unmarried fathers in Ohio juvenile courts sometimes have to work harder to receive the same rights they would receive in domestic court.
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However, Ohio Revised Code 3111.06(A) states:
If an action for divorce, dissolution, or legal separation has been filed in a court of common pleas, that court of common pleas has original jurisdiction to determine if the parent and child relationship exists between one or both of the parties and any child alleged or presumed to be the child of one or both of the parties.
This would allow the domestic relations court to retain jurisdiction over the parents for purposes of establishing paternity of the unborn child. The statute does not limit such jurisdiction only to the divorce proceedings. Thus, there appears to be no legal reason the court cannot grant the divorce now, and deal with paternity, support and parental rights later, on a post-decree basis in the domestic court (divorce, dissolution, annulment, or legal separation) case.
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If the parties want to get divorced NOW, and do not want to wait until the child is born, there may be some steps the parties can take to convince the court to approve the divorce.
First, the issue of whether a Judge will or will not grant a divorce while the wife is pregnant often boils down to the preferences of the individual Judge (and possibly Magistrate) assigned to your case.
Second, the level of cooperation between the parties may have some influence on whether the Judge will trust that the issues of paternity, support and parental rights will be dealt with quickly after the child is born. There are several ways the parties can cooperate to assure the Judge there is no reason to hold the case open.
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If the husband and wife know that the husband could not possibly be the father of the baby, they should stipulate to this fact in the divorce decree. The court can then make findings rebutting the legal presumption that the husband is the father and “disestablish paternity” in the divorce decree.- The parties can give the court stipulated findings of fact that contain all information needed to make a child support order.
The parties could bring a post decree motion to establish paternity, support and parental rights of the child to the court for filing on the day of the divorce decree, file the motion on the day of their final hearing, and set the first hearing date to occur in front of the same judge a few weeks after the child’s due date. If either of the parties wants genetic testing, they could agree to the manner in which the genetic testing will be done. If the parties use a private service for the testing, they could have the results before they attend their first hearing.
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You might wonder how courts can just decide to hold a divorce case open for many months against the parties’ wishes. First, domestic courts have broad discretion. They cannot just do anything they want, but they can do a lot.
Second, even if a party were to try to take the issue up the court of appeals, babies develop faster than appellate courts make decisions. By the time your case was heard in the court of appeals, the baby would be born, rendering the issue on appeal moot.
Third, even if somehow the court of appeals agreed to hear your case quickly, I’ll say it again: domestic courts have a lot of discretion in Ohio. They are probably going to be allowed to do what they think is best in this case.
An Ohio family law attorney can help you decide what is the best course of action in your case.
CALL NOW at (614) 225-9316 or contact us by e-mail
You may also be interested in some of our other divorce articles:
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N says
I have been separated from my husband since 2012 and I just found out I’m pregnant with my boyfriends baby. How do I make sure that I can put my boyfriends name on the birth certificate instead of my husband?
D says
interested in annulment divorce only been married one month husband abusive just terminated pregnancy