Pregnancy should be a happy time in a couple’s life; unfortunately, this is not always the case. While in many states divorcing can often assist spouses in escaping an abusive or toxic relationship, Florida courts have the discretion to postpone issuing a divorce judgment until the child is born.[i] Although Chapter 61 of the Florida Statutes aims to lessen any potential harm resulting from the legal dissolution of marriage for spouses and their children, delaying a divorce until the child is born goes against this objective by extending unhappy or abusive marriages up to an additional nine months. The conflict between the purpose of Florida Statutes Chapter 61 and the potentially damaging situations that are generated by judges delaying the completion of a divorce until the birth of a child should therefore be resolved by the courts implementing a pre-parenting plan.

Prior to analyzing what the pre-parenting plan should entail, it is crucial to comprehend why the courts are waiting until the birth of a child to finalize a divorce.  There is, strangely, no rule of law that explicitly forbids finalizing a divorce while a spouse is pregnant; the only approach to understanding this stunning reality is to consult chapter 61 of the Florida Statutes.[ii]

According to Florida Statute §61.052, when the parties decide that the marriage is irretrievably dissolved, a judgment of dissolution of marriage will be granted. However, there are additional steps the judge must take that may postpone the judgment of dissolution of marriage when a petition is based on the irretrievable breakdown, and there is a minor child. When minor children are involved in a divorce proceeding, a judge must approve a parenting plan, even when time-sharing is not controversial.[iii] The Florida Statute 61.052 (2)(b)(3) provides a principle the judge applies when creating a parenting plan; it states that “[the judge may] take such other action as may be in the best interest of the parties and the minor child of the marriage.” This “best interest of the child” standard is pertinent to this analysis of why Florida courts do not issue a final divorce decree until the child is born.

The fundamental principle of the “best interests” standard is that judgments regarding child custody should take into account the minor’s “education, health, and physical, social, and emotional well-being.”[iv] Before reading Florida Statute §61.13(3), which provides a non-exhaustive list of factors for judges to assist in discerning the child’s well-being, the question to have in the back of the mind is, “Can a judge consider these factors before the birth of a child?” Now note the considered factors: “evidence of…child abandonment; the length of time the child has lived in a stable, satisfactory environment…; and the demonstrated knowledge…and disposition of each parent to be informed of the circumstances of the minor child, including…the child’s friends, teachers, medical care providers, daily activities, and favorite things.”[v] The answer is no; a judge cannot consider evidence of child abandonment or the length of time the child lived in a suitable environment if there is no birth of a living child.

Turning to Florida Statute §61.13(2)(b), which provides a guideline to what an adequate approved parenting plan must include. Again, before reading these factors, the question to have in the back of the mind is, “can a judge approve an effective parenting plan before the birth of a child?”

At the very least, a parenting plan must 1) explain how the parents will split responsibility for the day-to-day duties involved in raising the child; 2) specify the time that the minor child will spend with each parent according to the time-sharing schedule agreements and name the person who will be in charge of all medical care; 3) the parenting plan must state that either parent may consent to the kid receiving mental health treatment if the court mandates shared parental authority over health care decisions; address issues about the school, such as the address that will be used to determine the school’s boundaries, and adequately discuss the technologies and methods that parents will employ to communicate with their children. However, any decision on the above factors may be a waste of the court’s time because most, if not all, of the factors that go into approving a parenting plan, require a living child to be out of the womb. For example, the judge cannot consider child abandonment if the mother cannot physically desert the child – as the child is still physically attached.

Therefore, the query “why are the courts waiting for the birth of a child to conclude a divorce?” was answered through a study of the statutes. Judges must approve a parenting plan when finalizing a divorce involving a minor child. In drafting a parenting plan, a judge must consider many factors that require observing the parents’ interaction with the child. It is not practical for a court to see the parents’ interactions with the child while the child is still in the womb. Thus, to save the court’s time by not imposing a parenting plan that might not work and to guarantee they enter a judgment that is in the best interest of the minor child, judges will likely wait until the birth of a child to conclude a divorce.

Although, waiting until the birth of a child to finalize a divorce may sound like the most reasonable course of action to take to ensure that the child’s best interests are considered. When considering the long-term impact, this may hurt the child more than it helps as they may be born to parents who have a great deal of animosity toward one another because the court made them stay in an unhappy marriage or, worse, an abusive one. The court should instead grant the dissolution of marriage prior to the child’s birth and develop a pre-parenting plan, which should include similar factors to those noted in Florida Statute 61.13(2)(b). The modified factors to include in the pre-parenting plan must: 1) compel spouses who have experienced domestic violence to visit a doctor every two weeks; 2)  require check-ins with a therapist to make sure the home is functioning safely if the living situations compel the couple to continue cohabiting throughout the protracted marriage; 3) describe how the parents will divide the costs of living if finances are a concern and the reason for the divorce; and 4) adequately discuss the technologies and communication strategies parents will employ to communicate with each other to ensure healthy interactions are established before the child arrives.

By putting a pre-parenting plan into action, judges can consider how the parents interact during that time and utilize that as the foundation for creating a successful parenting plan once a child is born.  The development of a pre-parenting plan will also spare the court time by avoiding the imposition of a parenting plan that might not work because it is formed after the judge forces the parents to stay legally married. Consequently, judges will no longer have to wait until the birth of a child to conclude a divorce to ensure they enter a judgment that is in the child’s best interest. The Florida Statutes’ Chapter 61’s goal is to minimize any potential harm to the spouses and their children due to the legal dissolution of marriage is thus achieved with a pre-parenting plan.

[i] See Steve W. Marsee, What to Do If Your Wife Is Pregnant During a Florida Divorce?, Marsee Law (Aug. 3, 2020), https://www.marseelaw.com/what-to-do-if-your-wife-is-pregnant-during-a-florida-divorce/.

[ii] See Fla. Stat. § 61.001–61.773 (2022).

[iii] See Instr. For Fla. Sup. Ct. Approved Family Law Parenting Plan (02/18), Form 12.995(A).

[iv] See Emily Doskow, The Best Interest of the Child: Factors Judges Consider in Deciding Custody, DivorceNet, https://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a- (last visited Oct. 2, 2022).

[v] Fla. Stat. § 61.13(3) (2022).