Should Pregnant Couples Be Required to Wait Before Seeking a Divorce?

Most states have a “waiting period” for divorcing couples before their divorce is finalized. What happens if a state applies a longer waiting period for some divorcing couples than others though? Would that discrimination be legal?

Missouri law prohibits courts from finalizing a divorce when a woman in the couple is pregnant. Texas and a few other states have an informal policy among their state’s judiciary that divorces should not be finalized while a woman is pregnant.

However, a pregnancy would impact the custody and child support terms of a divorce. If the woman has twins, triplets, or a child with special needs may require a judge to change the custody and support order as well. Opponents argue that the law unduly punishes pregnant women and may endanger them if their spouse is abusive. Likewise, men who are in a marriage with a wife who is pregnant with another man’s child may want to end the marriage quickly as well.

It is not unusual for states to require divorcing spouses to wait before their divorces are finalized. California, for instance, bars divorces from being finalized until at least six months have lapsed. Divorce waiting periods exist to make sure that spouses are certain about their decision and are not simply having a heated, but temporary, dispute. However, Missouri is unusual in that it specifically makes pregnant women wait for their pregnancy to end before a divorce is finalized.

Does a Longer Waiting Period for Divorce Constitute Pregnancy Discrimination?

Pregnancy is an unusual classification in the legal world. The Federal Constitution and the Civil Rights Act generally prohibits discrimination against women. The Pregnancy Discrimination Act only bars employers from discriminating against people on the basis of pregnancy. As a result, laws that discriminate against pregnant women do not have to explicitly target women because men do not become pregnant.

Any laws that consider pregnancy as a factor will discriminate against women more than men. Neither the Federal Constitution nor Congress makes these laws outright illegal. Sometimes, these laws are justified. The murder of a pregnant woman counts as two murders in many states. Other times, pregnancy discrimination is unlawful though, such as terminating an employee simply because she is pregnant. How a state applies rules to pregnant women is often a matter of that state’s public policy as long as it doesn’t violate federal rules.

In Missouri, the waiting period for most divorcing couples is thirty days, i.e. one month. Forcing a pregnant woman to wait for her pregnancy to resolve means a potential waiting period of nine months, literally nine times longer than if the woman wasn’t pregnant.

To be sure, the burden isn’t a significant one in most contexts. It is just a waiting period and the spouses aren’t required to take any extra steps other than wait an additional eight months. There are also some good justifications for the waiting period – a court will want to resolve potential child custody or support issues that may arise rather than deal with a new lawsuit less than a year later. So the general rule is not overly burdensome and there is a good reason for it.

However, there are some instances where waiting may not be an option – or at least not a good option – for the parties involved. Certainly the state doesn’t want a woman and an infant child to remain with an abuser. It may also be emotionally damaging for a husband to deal with the fact that his wife is pregnant with another man’s child. Hopefully though, these cases are rare and not the norm.

Missouri’s waiting period rules are sound but for some corner exception cases. The best thing for all involved then would be for Missouri to explicitly carve out an exception to the pregnancy waiting period for women that are in a marriage with an abusive partner or where the paternity of a child may be challenged.

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