Divorcing while pregnant in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Pregnancy And Divorce In Illinois

Divorcing while pregnant in Illinois

Children are a blessing…but sometimes their timing is way off. When you’re going through a divorce and you get pregnant or your spouse gets pregnant, your divorce gets a lot more complicated.  Still, that baby is coming and can be dealt with in your Illinois divorce.

In Illinois the law doesn’t say much about pregnancy during a divorce. “Virtually everything about a dissolution of a marriage is statutory” In Re: Marriage of Jeffrey D. SKELTON, 5-04-0262.

“[T]he State of Illinois has no [statutory] provision [that deals with pregnancy during a divorce]” In Re: Marriage of Jeffrey D. SKELTON, 5-04-0262.

In the absence of law regarding pregnancy while divorcing in Illinois, we are left with mere strategy.

In most cases, the smart thing to do is to wait until the child is born to proceed with finalizing the divorce.  Otherwise, parenting time and child support will just have to be revisited in future court proceedings.

Family law in Illinois has a second set of statutes outside of the divorce statutes, “Illinois Marriage and Dissolution of Marriage Act,” 750 ILCS 5. There are additional statutes regarding children that usually presume the parties aren’t married, “Illinois Parentage Act of 2015”, 750 ILCS 46

A married person can still use the Parentage Act in lieu of the Marriage and Dissolution of Marriage to get a court ruling regarding an unborn child.

The first step is determining exactly who is the child’s parent.

“A complaint to adjudicate parentage shall be verified, shall be designated a petition, and shall name the person or persons alleged to be the parent of the child.” 750 ILCS 46/602

“The people who can bring such an action are:

a man presumed or alleging himself to be the parent of the child” 750 ILCS 46/602(c)

or

“a woman presumed or alleging herself to be the parent of the child” 750 ILCS 46/602(d)

After requesting the court to determine parentage, there is not much more you can do.

“Proceeding before birth. A proceeding to establish parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child.” 750 ILCS 46/612

So, you can start the parentage case…but you can’t finish it until the child is born.

“The following actions may be taken before the birth of the child:

(a) service of process

(b) the taking of depositions to perpetuate testimony; and

(c) except as prohibited by Article 4 of this act, collection of specimens for genetic testing.” 750 ILCS 46/612

There is not a lot a divorcing party can do before giving birth. You can serve your spouse, you can take a deposition if you’re worried they deponent be available after the birth of the child, and you can test the unborn child’s DNA. 

What To Do If You Or Your Spouse is Pregnant With Another Person’s Child?

In reality, the only time you might want to act in advance of the birth of a child is if the child’s father is not the mother’s husband.

In Illinois, if the child is born while the parties are still married the child will be presumed to be the child of the husband.

“A person is presumed to be the parent of a child if:

“the person and the mother of the child have entered into a marriage…and the child is born to the mother during the marriage” 750 ILCS 46/204(a)(1)

Even if you’re divorced but it’s conceivable (pardon the pun) that the child was conceived during the marriage, the child will be presumed to be the child of the man who was married to the woman.

“A person is presumed to be the parent of a child if:

before the birth of the child, the person and the mother of the child entered into a marriage…within 300 days after its termination by death, declaration of invalidity of marriage, judgment for dissolution of marriage” 750 ILCS 46/204(a)(3)

So, if you’re married or were recently married and someone’s pregnant, the husband is presumed to be the father. 

A married presumptive father can easily declare themselves to be “not a parent” in Illinois.

“A presumed parent may sign a denial of parentage” 750 ILCS 46/303

It’s really just a form that gets filled out and filed out.

“To facilitate compliance with this Article, the Department of Healthcare and Family Services shall prescribe forms for the… denial of parentage” 750 ILCS 46/312(a)

You don’t have to wait for the birth of the child to deny parentage

“[D]enial may be signed before the birth of the child” 750 ILCS 46/304(b)

But wait, who is the child’s father then if the husband denies parentage?

Hopefully, the real father will agree to sign a Voluntary Acknowledgement of Paternity. If so, this will clearly establish who is the father and who is not the father.

“[A] valid denial by a presumed parent filed with the Department of Healthcare and Family Services, as provided by law, in conjunction with a voluntary acknowledgment, is equivalent to an adjudication of the nonparentage of the presumed parent and discharges the presumed parent from all rights and duties of a parent” 750 ILCS 46/305(c)

This statute does leave the door open for what happens when a husband denies that he is the father but there is no real father willing to accept parentage. 

“A proceeding seeking to declare the non-existence of the parent-child relationship between a child and the child’s presumed father may be maintained at any time” 750 ILCS 46/608(b)

To convert a married “presumed parent” to a non-parent, there’s going to have to be a genetic test.

“As soon as practicable, a court or an administrative hearing officer in an Expedited Child Support System may, and upon the request of a party…shall order or direct the mother, child, and alleged father to submit to deoxyribonucleic acid (DNA) testing” 750 ILCS 46/401

DNA tests are available that work without the child being born, yet.

Illinois courts do not want children to not have fathers. The request of a married man to deny paternity without another father waiting to be declared may be denied by an Illinois court

“[T]he court may deny a motion by a parent, presumed parent, acknowledged parent, adjudicated parent, alleged parent, or the child seeking an order for genetic testing of the parents” 750 ILCS 46/610(a)

If you are thinking about divorce and you or your wife are pregnant…you’ve got a lot on your hands.  Contact my Chicago, Illinois family law firm to discuss your options with an experienced Chicago divorce attorney.