Divorce While Pregnant in Illinois

Can you get divorced while pregnant in Illinois?

Yes. The Illinois divorce statute expects that a spouse may be pregnant when a case is filed. The verified petition for dissolution must list the names, ages and addresses of all living children of the marriage and state whether a spouse is pregnant (750 ILCS 5/403(a)(4)).

The usual requirements still apply. When the case is filed, one spouse must live in Illinois, or be stationed here as a member of the armed services, and that residence or military presence must have lasted 90 days before the case was filed or before the court's finding. The court must also find that irreconcilable differences have caused the irretrievable breakdown of the marriage, and determine that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family (750 ILCS 5/401(a)). Our guide to the petition for dissolution of marriage explains what else the petition says.

When the judgment can be entered

Filing is one step; the final judgment is another. The judge decides when the case is ready. Before entering a divorce judgment, the court must have considered, approved, reserved or made provision for the allocation of parental responsibilities, child support, maintenance and the division of property, to the extent it has jurisdiction (401(b)). A baby on the way is part of that picture, so plan for how the judgment will address the child. You can file and move the case forward while pregnant, and the judge decides when the judgment is entered.

Who is the legal parent of a baby born during the divorce?

Under the Illinois Parentage Act of 2015, a spouse is presumed to be the parent of a child born during the marriage. The presumption also covers a child born within 300 days after the marriage ends by a judgment of dissolution (750 ILCS 46/204(a)(1), (2)). The same rules apply to a civil union.

The 300-day presumption

The 300-day rule means that finishing the divorce before the baby arrives does not by itself end the presumption. If the child is born within 300 days after the judgment, the former spouse is still presumed to be a parent. That is why parentage should be addressed in the case rather than left for later.

If the spouse is not the biological parent

A presumption can be challenged. An action to declare that a presumed parent is not the parent may be brought by the child, the woman or person who gave birth to the child, or the presumed parent, by verified petition (750 ILCS 46/205(a)). After the presumption is rebutted, another person's parentage can be established in the same action if that person has been made a party.

Timing is strict. The action is barred if it is brought more than 2 years after the petitioner knew or should have known of the relevant facts, and the 2-year period cannot extend past the child's 18th birthday (205(b)). Our guides to the Illinois Parentage Act of 2015 and how to establish paternity in Illinois explain the process in more detail.

Child support, parenting time and decision-making for the baby

The baby's support, parenting time and decision-making need to be decided, either in the divorce judgment or later if the court reserves them. These are the same issues the court decides for any child of the marriage.

Why the judgment must address the child

Section 401(b) requires the court to consider, approve, reserve or provide for parenting and support before entering judgment. The court can enter a judgment that reserves any of these issues, either on the parties' agreement or on a party's motion and a finding that appropriate circumstances exist (401(b)). Some couples finish the property terms and reserve some child issues until after the birth; others wait to finish the whole case. Which path fits depends on your facts.

When the court allocates parenting time, it considers all relevant factors in the child's best interests. One factor is the time each parent spent on caretaking in the 24 months before the petition or, if the child is under 2 years old, since the child's birth (750 ILCS 5/602.7(b)(3)). Other factors include the child's needs, the distance between the parents' homes and the parents' ability to cooperate. For newborns, that makes the first months of care part of the record. Read more in our guide to allocation of parental responsibilities.

Child support for the baby is set under the Illinois guidelines: the court determines child support in each case by applying the child support guidelines, unless it finds that applying them would be inappropriate (750 ILCS 5/505(a)(2)). Our guide to the Illinois child support statute walks through the income shares calculation.

Pregnancy and delivery expenses in a parentage case

Parents who are not married to each other use a parentage case instead of a divorce. In a parentage action brought within 2 years after a child's birth, the judgment may direct either parent to pay the reasonable expenses related to the pregnancy and the delivery of the child (750 ILCS 46/802(b)). In a divorce, list pregnancy and birth costs in your financial disclosures and raise them in settlement talks.

Temporary support while the case is pending

Either spouse can ask the court for temporary maintenance or temporary child support while the divorce is pending. The request must include an affidavit as to the factual basis for the relief, and the statewide financial affidavit must be supported by documents such as income tax returns, pay stubs and bank statements (750 ILCS 5/501(a)(1)).

Temporary support issues are handled on a summary basis, using allocated parenting time, financial affidavits, tax returns, pay stubs, bank statements and other documents. An evidentiary hearing may be held if a party shows good cause (501(a)). Once the baby is born, ask your lawyer whether to update a pending request. Our guide to a motion for temporary relief explains the steps.

Safety, health insurance and the hospital

Plan for safety and coverage before the birth. Keep health insurance in place, learn how the support order will cover the baby, and if there has been abuse, ask about an order of protection.

When the court sets child support, the order must include a provision for the child's health insurance. It must require that the child be named as a beneficiary of any health insurance plan available to the parent ordered to provide coverage through an employer or union (750 ILCS 5/505.2(b)(1)). Before you change your own coverage during the case, check any court order and talk with your lawyer, and ask your plan how and when to add the baby.

For your own coverage options once the divorce is final, see our guide to health insurance after divorce in Illinois.

If you are in danger, call 911. An order of protection is a separate court order. If the court finds that a family or household member, such as a spouse, has abused the petitioner, an order prohibiting the abuse shall issue when the other requirements are met (750 ILCS 60/214(a)). Our order of protection page explains how it works. Tell your doctor and the hospital about any order or safety concern, and keep copies of court orders with you.

Getting help

A lawyer can help you plan the timing of the case around the birth, address parentage and support for the baby, and protect your health coverage. Our Chicago divorce lawyer page explains how the firm handles divorces in Chicago and Cook, DuPage, Lake and Will Counties, from its office in Chicago.

Agreed cases

If you and your spouse agree on every issue, the uncontested divorce fee is $1,500 flat (court filing fees not included); see uncontested divorce in Chicago. If you want to file on your own with attorney support, Self Represented Documents costs $399. The fee includes covered document preparation, attorney document review and one sixty-minute advice call; you handle filing, service and court dates. See Self Represented Documents.

Contested cases

Full representation is an initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active. Fees are confirmed in writing before you engage the firm, and no lawyer can promise a particular result.

Consultations are by phone; a free weekend consultation is available by Zoom. Call 312-965-5618.