Episode #121: Divorcing While Expecting

Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Our partners are experienced trial attorneys who’ve been board-certified in family law by the Texas Board of Legal Specialization.

Jake Gilbreath:
Thank you for tuning in to the For Better, Worse, or Divorce podcast, where we provide you with valuable tips and insights on navigating divorce and child custody situations in Texas. I’m Jake Gilbreath, and today I’m joined by one of our outstanding associate attorneys, Priyanka Bins. We are going to discuss both the legal, personal, and emotional aspects of going through a divorce when one of the parties is pregnant in the state of Texas. Welcome back, Priyanka. I know you’ve done this podcast before. Thank you for joining us.

Priyanka Bins: Yes, thank you for having me. Excited to be here.

Jake Gilbreath: All right, I tell people that I think some of the hardest cases that we do are when you have a divorce or a child custody situation with a child under the age of three, and I think it gets harder the younger the child is. What’s your experience with that?

Priyanka Bins: Absolutely, I think that just having a child and going through pregnancy and childbirth is stressful enough. And then to add this big life change where you’re separating things out and moving out of one home into two, it can get complicated, absolutely.

Jake Gilbreath: Really complicated, both legally and emotionally, and everything, really, for everybody involved. If it’s a heterosexual couple having represented a lot of dads going through this situation, it’s sort of scary. And you’re already, speaking as a dad, already feeling out of control and as if you’re not contributing much to the situation, probably because you’re not by comparison. Still, you have this unknown out there. What’s going to happen? And then I can’t imagine, Priyanka, I’m talking to you as a mom and also as a lawyer, I can’t imagine what it’d be like going through it while pregnant, or if we have a very young child. But it’s something that happens, and we’re there for people, no matter what led to the situation that you find yourself in.

Jake Gilbreath: I guess, Priyanka, let’s sort of talk if somebody’s going through a divorce during pregnancy, so what kind of special circumstances does that cause, if one of the parties is pregnant and one or both of them wants to go through the divorce, and a divorce is filed?

Priyanka Bins: One of the first things I want to know when I’m representing someone who’s pregnant, is I want to know what the circumstances are in the home. How are things going? Are the two of you amicably determining that you’re going to get a divorce, or is this something that we need to take more serious considerations? Is there violence going on in the home that we need to take into account? Those are all things that I want to hear about first. And then we can determine a course of action to decide how we are going to make sure that everyone’s comfortable. How are we going to make sure that dad is preserving his rights while mom is ensuring that the baby’s okay and that she’s taking care of her health, her mental health, and physical health? Those are all concerns that I initially have when I meet with the client who is expecting.

And I think when there are issues of family violence, that kind of takes you into a different path, right? When you’re planning a divorce where you’re expecting a child and there’s family violence, you are not just going to file for divorce and then wait for the child to come and finalize the divorce. There are a lot of other things that you’re going to consider. Those are my first steps, and then we can make a course of action after that.

Jake Gilbreath: Yes, and I like that you start with the physical safety and then emotional safety and well-being. It’s already a difficult time, and obviously, in any divorce, physical safety is a priority, but looking at the emotional safety of everybody involved is really important.

I’m the same way. It’s, let’s come up with a plan and let’s come up with what’s practical, prioritizing safety. Sometimes people, when they’re separated, when they’re coming to you or they’re talking about separation, and then all of a sudden, your birth plan looks a whole lot different for both sides involved. Looks a whole lot different from what you were planning. If it was a planned pregnancy, it may look like more y’all had planning was involved and how you’re going to do the birth. So, it’s just something to talk about.

Legally, though, and you mentioned a little bit like in family violence situations, but let’s say there’s not family violence, where you’re not filing for a protective order, but you have somebody who’s going through a divorce. And from both perspectives, what can you tell, and let’s say it’s a heterosexual couple, so you have a mom and a dad, what can you tell them about what legally can happen during the pregnancy, before the birth? And then I suppose it’s taking it up to the actual birth of the child?

Priyanka Bins: There are certain things that you can accomplish during the pregnancy. You can’t necessarily get divorced, but we can start that process. We can file for divorce, we can try to get some temporary orders to get certain things in place. For example, when I’m representing a dad and they’re expecting, then I want to make sure that the dad is involved in the prenatal care and in making sure that he’s doing his part to cover prenatal expenses. Any sort of hospital or doctor’s visits that generally dads want to be included in, so you want to make sure that you can get that taken care of.

And then when you’re representing mom, it’s kind of the same. I mean, you want to make sure, probably primarily, that the prenatal expenses are taken care of. Those can get very costly, even with insurance. And then you want to make sure that she’s comfortable with how things will play out when the child comes. So, for example, I’ve had several cases where we’ve mediated just the issue of, is dad going to be in the room when the child is born? Is Dad going to be at the hospital? Is he going to be allowed to be alone with the child after the birth? So, those are all things to consider and to ask an attorney about if you’re in that situation.

Jake Gilbreath: Yeah, those are all really good points, because a lot of people may not think about all those things. I mean, maybe it’s your first child and you haven’t thought about those things, period, or even if it’s the second or third child, or what have you. Most people haven’t thought about: what is this going to look like if we’re separated or going through a divorce? But so, I think it’s a good point, it’s a lot of practical considerations.

So, think about if one side’s pregnant, and then I mean, the birth of the child’s going to happen while the case is pending. I mean, from again, representing both moms and dads in the situations, I do get the legal questions sometimes, I’m sure you do too, from dads in a heterosexual context, or if you’re in a same-sex relationship, a non-biological mother who’s not carrying the child, right? Let’s say it’s a contentious divorce or contentious separation or a custody case, and somebody’s asking, “Well, I want to be there for the birth of my child? So, can I force it?” And the legal answer is no, you can’t. For it’s a medical procedure, ultimately at the end of the day, for the mother, it’s highly personal and private, she may not want you there or your family. And so no, you can’t force it.

But that goes back to what you were saying, Priyanka, is there’s ways that we can do it where even if there’s not this legal backdrop where I can force something, like litigating over a five-year-old child, hopefully we can work out a possession and access schedule, but if we can’t, at the end of the day, I could go to court, I can get a court order that says here’s when I get to see my child. That’s not the situation for the birth of the child, and being there as part of the birth plan, the child is being born. And so, we’re really more looking at the practical view from both sides, like you were saying.

Priyanka Bins: Yes, and you’re dealing with a time-sensitive issue, so you need to move quickly. And you’re also handling other issues, most likely, property issues, splitting up of bills, and all the other things that you have to worry about in a divorce. And then to have to also kind of come up with a birth plan that works for both parents in a manner of hopefully eight or nine months, but generally it’s going to probably be more like five or six months, the amount of time that you’re going to start planning and figure out what to do.

Jake Gilbreath: Well, let’s talk about a not-fun conversation that we do have to have with our clients. Do you talk to your client’s prospective dads about DNA tests when they’re going through either a divorce or a custody case?

Priyanka Bins: Yes, absolutely. I mean, that is something that comes up, and generally, I’m the type of lawyer that when I’m talking to a client, we’re going to talk about everything, uncomfortable or not, because I need to know to ensure that they’re protected. And so in cases where parties are getting a divorce either right after finding out that they’re pregnant, I think it’s important to ask, is there any concern there that maybe there was some infidelity, or any concern that you would want a DNA test to be done? Because if there is no DNA test that happens, then the court’s just going to presume that the husband is the father, that’s just kind of automatic. And so, without taking those steps, you’re essentially waiving any opportunity to bring someone else in who may be responsible for the child.

Jake Gilbreath: Yeah, it can be a really sensitive topic, as you can imagine. I usually, from a practical perspective, I usually tell clients we’re the ones asking for a DNA test. I usually tell the clients, “Blame it on me,” or I just say, “Well, my lawyer said I have to do this.” If the other side has a lawyer, they’ll explain that it’s something that just has to be done. It’s all of us, because we’ve always obviously seen the situation where somebody assumes that they’re the father, maybe legally, they’re presumed to be the father. I mean, it turns out that that’s actually not the case. I’ve had clients find out years later, I’ve had clients find out really multiple years later, 8, 9, and 10-year-old children, and they’re finding out when going through a divorce. It’s an emotional strain from the beginning, it’s devastating doing it for years, finding out years later.

Priyanka Bins: Incredibly damaging.

Jake Gilbreath: Let’s talk about then, Priyanka, this is going back to what I said at the beginning, one of the most difficult things to come up with. Let’s say people are going through, they’re separating right when mom’s pregnant, child’s born, or maybe they’re separated or divorced when you have a child, an infant maybe say, under six months. I think those are some of the most difficult cases to come up with possession schedules. There’s not a schedule in the family code that says this is what we presume the schedule is. How do you approach those cases, I guess, from representing either side, with coming up with a possession schedule, say, for a baby that’s under six months?

Priyanka Bins: Yeah, so those are really important things we need to take into account, right? We’re dealing with a child who is incredibly young and very dependent on his or her mother. And so in those situations, you want to make sure, I think the first thing as a mom that I ask is, “Are you breastfeeding?” Because that is something that is going to require the child to be with the mother the majority of the time. And so, that is one of the first considerations I come up with.

And then after that, we start to determine what is a comfortable period of time where the child can visit with dad, maybe not for a long period of time, but frequently? I think it’s very important to have frequent contact, particularly at a younger age. So generally from one day old to three months old, you want to make sure that there’s frequent contact so that the baby can sense his or her father and know who that is and feel comfortable there. But there are a lot of studies that have said that that’s really healthy for the child and that we want to kind of limit the overnight and the extended periods away from mother and incorporate more frequent, shorter periods of time, and that’s good for everyone involved. So, those are some things that I like to discuss with my clients.

And then, of course, if things are a little bit different, if mom wants father to be more involved or maybe there’s no consideration of breastfeeding, maybe dad can do the bottle feeding, then that makes it a lot easier to come up with a schedule, particularly if the parents live close to one another. I’ve had situations where a newborn is basically being passed back and forth from the same neighborhood because mom and dad live in the same neighborhood, and they both want to be really, really involved in the child’s life. So, it really just depends on personal preference and how you plan to raise your baby.

Jake Gilbreath: Yeah, I think those are really good points, because all cases, whether or not you’re getting divorced with an 18-year-old, a 15-year-old, no kids, or what have you, every single case ultimately is custom. Every single family is different, every single arrangement is different. But I would say for younger children, for babies particularly, it is really particularly custom to the family, right? An eight-year-old, obviously, every single eight-year-old is different, but you have a child and they’re in school and we can kind of figure out for most children if there’s not special needs of kind of… We’re going to be pushing a lot towards a standard possession order or a 50/50 possession order. Obviously again, every single family is different and every single case is different, but really, there is no standard, like you were saying, for an infant. And there’s so much to take into consideration. Are we nursing, are we not? Where does everybody live? A safe household? Is everybody sober?

And like you were saying, in an ideal world where everybody’s safe, and let’s say we have a nursing child, then you do have sort of these short, frequent visits for this situation, dad. I’ve represented moms in that situation, and I’ve represented dads in that situation where it can feel scary for the dad. It’s like, well, this is my child too, right? We made this child together, we were planning to raise this child together. I want to be involved in my child’s life as much as possible. And it can feel kind of in your standard situation, it can feel like this isn’t fair, I’m getting cut out. Why don’t I matter as much? And again, every single case is different, but kind of counseling through that, it’s like, this is not the schedule from now until your child turns 18. We’re dealing with a baby, we’re dealing with an infant that may have nursing needs that the father just can’t fulfill. Sometimes we can if we’re bottle feeding, pumping, or using formula.

But I guess if I were going to say a theme and correct me, tell me if you agree, Priyanka. I think the theme of doing a custody case with babies is trying, if it’s safe, trying to lower the anxiety as much as we can on both sides. Because you’re a parent, I’m a parent, it’s really anxiety-producing to have young babies as is.

Priyanka Bins: Absolutely.

Jake Gilbreath: Going through this on top of it.

Priyanka Bins: It’s hard to co-parent in a harmonious marriage. I mean, it’s just a difference of opinion, it’s being a first-time parent, never having done these things. And then on top of that, to add to this discord, we’re no longer living under the same roof, maybe we don’t even agree on the fact that the sky’s blue. So, how are we going to agree on what time the baby sleeps and how many months of breastfeeding we’re going to do, or when he or she does his first sleepover? Those are all things to consider. And I think with dads, it can be daunting because you just don’t know how things are going to play out. So I always recommend to my clients, if it’s available to them or if it’s something that the parties are both open to, is therapy. Family therapy to try and get through what’s a really new and stressful time, a happy time, but still stressful.

Jake Gilbreath: This conversation just reminds me, just a point that I make with lawyers that come, considering doing family law, come to work for us through family law. It’s just what a great job we have at the end of the day that we can kind of help people through this difficult time. When I’m talking, we do a lot of school interviews where we have lawyers that are thinking about doing family law, they’re going to come clerk for the firm. So I get to talk to a bunch of first-year law students, second-year law students who are considering family law.

One of the stories I tell them is a case that I had or a day that I had, really, towards the beginning of the pandemic, so everything was virtual. And I tell them the story to explain how diverse the job is that we do. And there’s a kind of scheduling snafu or something that happened where a particular event had to happen on this day. So it ended up to where I was kind of two commitments on the same day. On one hand, I was appearing virtually in Travis County in front of a judge to come up with a possession schedule for a one-month-old baby. And on the other hand, about the same time, we had scheduled a mediation for a divorce. And I had co-counseled divorce, so it was fine, so they would kind of go back and forth between the two.

But in the custody case that we were appearing in court, we were trying to come up with a possession schedule for a one-month-old baby, and we were talking about nursing and nap time schedules, car seats, diapers, and all this stuff. And I was using my training and legal skills for that, and then popping over to the divorce, we were talking about the sale of a business during the marriage that sold for $800 million. Right? And it’s the same, I mean, I’m being asked for my advice and guidance on both of them. And it requires us to have experience in both those things, and they’re both incredibly important to the family unit. I would argue that the possession schedule for the one-month-old baby is way more important than what we do with $800 million, and that we had that opportunity. I don’t know about you, but when I went to law school, I didn’t think this is what I’d be doing, but that we had the opportunity to help families through this, no matter what their situation looks like.

Priyanka Bins: Absolutely. I mean, at the end of the day, even though you only represent that one person, one party to the couple, you’re still helping an entire family trying to figure out. How are we going to navigate this together? And how are we going to make sure that everybody’s comfortable and that this baby’s life and new life is kind of the norm that you hope for? And so, that’s really important because it is emotional and it can get emotional for me, because I’m a mom. And so seeing that and seeing how to make a difficult situation easier for everyone. It can be tough, but it is incredibly rewarding.

Jake Gilbreath: Yeah, absolutely. I agree with that, 100%. Let’s just power through a few listener questions. I want to get to these, and then we’ll wrap up. So I had somebody who wrote in, asked from the divorce perspective, does the presence, they asked for the presence of an unborn child, let’s say either a child,an  unborn child, or a newborn. How does that affect the division of assets, and from the divorce perspective, Priyanka?

Priyanka Bins: Sure. So I mean, I think it is a consideration to take into account if the child has not been born yet, and maybe there’s another child. Let’s say that the older child has a certain lifestyle or certain kind of, maybe they’re going to private school, maybe they have certain extracurricular activities that will continue, and you’re already expecting that the unborn child will kind of follow that path. Then the court can look at how the assets are going to be divided and what the custodial parent is going to receive, versus what the non-custodial parent will get. And maybe it makes sense to ensure that the custodial parent is getting a disproportionate share to accommodate the needs of the children. So I’ve seen that happen.

I think in general, if it’s your first child, I haven’t seen a situation where the division of assets might affect the presence of an unborn child. I’m curious to know what your thoughts are on that, but generally I think it would be more kind of, let’s maintain the lifestyle and ensure that the child is taken care of moving forward.

Jake Gilbreath: Yeah, I think that’s a good way of putting it. I mean, of course, I’m going to give the, it depends, answer that we always lead with. But it’s one of the many factors for the courts to take into consideration when they divide up the estate. I always remind listeners and remind clients, the court in the state of Texas doesn’t necessarily have to divide the property up 50/50, and there are lots of different factors the trial court can take into consideration in making its division. So that could be a disproportionate, that could be a difference in earnings, that could be one side has more separate property than the other, it could be fault on the breakup of the marriage, and it could be custody arrangements. So, even if you’re getting, probably wouldn’t be getting divorced when there’s an unborn child, but newborn child, even if we don’t absolutely know what this child’s life is going to look like moving forward, a lot of times say we have a sense and it’s certainly a factor for the court to take into consideration.

I’m going to ask two more. So, Priyanka, somebody asked, “The baby isn’t mine, but was conceived during our marriage. Does this make them responsible for the child, in terms of custody and support?” And you touched on this already, let’s go back to it because it is so important. So, if it’s not my child, but I’m married and my wife is pregnant, what does that mean for child support and custody?

Priyanka Bins: Absolutely. So, if you have any inkling that this is the case for you, then you’re going to want to do testing. The first thing we need to do is get that DNA test done. In some situations, maybe a father was at the hospital for the birth and believed that child to be his and signed what we call an acknowledgement of paternity, an AOP. And if that happens, and then maybe later some information comes to light that he’s going to want to get DNA testing, then he can do that, and then we would submit that test to the court to confirm that he i,s in fac,t not the father. At that point, the most important thing for the father’s attorney and probably for mother as well, is to bring in the actual biological father into the case as a third party. And then generally what will happen is you’ll have the divorce kind of continue on with husband and wife, and then you’ll have a suit affecting the parent-child relationship kind of grow out of that between the mother and the biological father.

And so those cases, they can seem complicated, but they’re really not. You’re still creating a final decree of divorce that includes all the terms you need for property division and for the child. You’re just doing so for a third-party father who has been brought into the case. But that’s so, so important, because if you don’t do that and you finalize your divorce as if you are the father, you will be legally obligated to that child.

Jake Gilbreath: Yeah, I’ve seen that. I’ve seen situations earlier on in my legal career, you’d have maybe say in this situation, dad’s deployed, husband’s deployed and serving in Iraq and the wife is pregnant and they don’t get a DNA test or adjudication that he’s not the father because they’re thinking, well, of course he’s not, right? He was deployed when his wife got pregnant. But legally speaking, even if it was a biological impossibility, legally speaking, marriage leads to presumption that the husband is the father. So, it’s just really important.

Priyanka Bins: Right. Bottom line, someone will be responsible. So, if they’re not going to find the right person, it’s going to be the husband.

Jake Gilbreath: Yep. Let’s do this last one, we kind of modified the question a little bit from what the listener wrote, but we’re talking about modifying custody arrangements after the child is born. That was the question, but actually, Priyanka, can you talk to me more about how these possession schedules progress? So, let’s say you have a situation where a newborn that’s breastfeeding, like you were saying, so you have short frequent contacts with the dad. Where do we go from there? Because that’s not going to be the schedule obviously when the child’s 18. So, what does that look like?

Priyanka Bins: Yes, so those vary, like you had said earlier, these are very specific and custom to the family. So, generally, I would say probably 95% of the time when I’m dealing with a newborn or a younger child, we settle these cases in mediation, because parents really want control over where the child’s going to be. And if you don’t settle a mediation and you go in front of a judge, there’s a huge chance that the baby’s going to get visitation with one of the parents through a standard possession order, which means immediate overnight. And you have not started sleep training, this baby probably doesn’t really know how to sleep more than a few hours at a time. So, those are all things that you want to think about before heading into court.

So, if you have the opportunity to reach an agreement, then you’re going to start thinking about what these, I guess what we call stair steps of time, that are going to be comfortable for my family? So in general, we’ll probably do them in increments of three to six months, depending on how they’re going. And essentially, it’s okay, when the baby’s born, we’re going to have three to six months of the baby being with mom primarily and breastfeeding. And then we’ll do, maybe dad will get Monday, Wednesday, and Friday for three hours at a time, and that’s every week. That way, the baby’s getting tons of exposure to dad, they’re having some bonding time together, but the baby’s still sleeping at home in his or her crib. So, there’s that.

Then the next three to six months will probably look quite a bit different. We’ll say that dad will get maybe Monday and Wednesday for a few hours, and then maybe we’ll try all day Saturday, because now you’re looking at a four to six-month-old. Older baby who’s probably more comfortable being away from the mother. And then as that progresses, we start inching towards a standard possession order. We want to make sure that the non-custodial parent is getting plenty of time with the child. And of course, the standard possession order means that they would be getting frequent weekends and holidays and things like that. Generally, I like to work up towards that at around, this depends on the family, sometimes it can be as early as a year, but most of the time there’s that three-year mark where the parties will eventually work up to a standard or expanded standard possession order, where dad will get quite a bit more time than just the frequent visits during the week.

Jake Gilbreath: And that is the magic age, right? Because in the family code, it says that’s when the presumptions kick in, as far as a standard possession order. But like you were saying, every case is different, right? I’ve seen judges or parties, by agreement, push it a lot quicker. I’ve seen people go a little slower. If there’s a theme for today, it’s that every single family is different, and these are hard situations, but with an experienced lawyer and having the right attitude about it, we can help you through it. So, really complex, and the topic is one of the most important things we deal with.

I appreciate you joining us today, Priyanka. That was great. And that’s all we have for today. As a reminder to our listeners, if there’s a topic that you would like us to discuss in the podcast or if you have suggestions or feedback for us, you can always reach out to us directly at podcast@waltersgilbreath.com. If you’d like to speak to a member of our legal team, including our amazing associates like Priyanka, you can find us at our website. That’s all we have for today, and thank you all for listening.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgillbreath.com. Thanks for listening, until next time.