Colorado Law on Divorcing While Pregnant

By Brenna Davis

Divorce is among the most stressful experiences people can face and pregnancy can make the divorce process even more difficult. In Colorado, couples may divorce while the woman is pregnant and this pregnancy can affect the divorce process. Divorcing couples should note that divorcing prior to the birth of the child will neither relieve either parent of child support obligations nor prevent either parent from asserting their visitation or custody rights. If you and your spouse disagree about custody and child support, or there is a question about the child's paternity, your interests may be best represented by a family law attorney.

Dissolution of Marriage

In Colorado, divorce is referred to as a "dissolution of marriage," and all divorces are no-fault. Instead of couples filing for divorce using common grounds, such as adultery or cruel treatment, a judge determines whether a marriage is "irretrievably broken." One or both parties may submit affidavits along with divorce paperwork indicating the marriage is irretrievably broken. On the divorce paperwork, the parties must check the box indicating the woman is pregnant. Judges routinely issue divorces based solely on affidavits, but if the woman is pregnant, judges are encouraged to investigate more closely. If paternity is an issue, the judge will delay granting the divorce until the baby is born and paternity can be determined.


Many parents worry that divorce will alter the paternity status of their baby, but if a baby is born within 300 days of a divorce decree, the ex-husband is the presumed father unless someone else claims to be. To have rights to visitation and custody, a man must not just be the biological father; he must also be the legal father of the child. Similarly, a man must be established as the legal father to have child support obligations. When there is a question of paternity, the father must take a paternity test and petition a judge to declare him the baby's father. The mother and father may also submit a joint stipulation to the court indicating the man is the baby's father.

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Colorado does not favor parents of either sex in custody disputes, but the belief that babies should remain with their mothers may affect a judge's decision. Parents must demonstrate their proposed custody plan is in their child's best interests and attach a proposed parenting plan to their petition for custody or visitation. Judges may appoint a guardian ad litem to represent the child's best interests. Custody evaluators typically recommend frequent, rather than extended, contact with the non-custodial parent. This can help foster attachments. Many custody agreements involving babies give the non-custodial parent several days a week to spend a few hours with the baby.

Child Support

Child support in Colorado is established according to the state's child support calculator, which take into account the parents' income and the needs of the child. Both parents are required to pay to support the child. However, if one parent has primary physical custody, she will not be required to pay child support to the non-custodial parent. The non-custodial parent pays child support. If a mother is very sick after childbirth and requires additional help or child care, the father may be required to help pay for these expenses if he does not have custody of the child.

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