Knocked Up – Legal Edition

SEPTEMBER 24, 2014


I read an article somewhat recently on, by Jordan Weissman, entitled For Millenials, Out-of-Wedlock Childbirth is the Norm. My interest was peaked when Weissman wrote, “a team from Johns Hopkins University recently found that 64 percent of mothers gave birth at least once out of wedlock. Almost one-half had all of their children without ever exchanging vows.” I was genuinely surprised at those statistics, despite the fact that I have represented many single mothers (and fathers), so I know having kids out-of-wedlock is not rare.

The traditional notion that a woman “needs” a man in order to have a baby is long gone. Sperm banks and good earning potential basically mean that any woman who wants to have a child does not have to be married, or even in a relationship, to do so. Those situations are the “easy” ones from a legal perspective (not so easy in other ways). A woman can go see a fertility doctor, undergo treatments, pay the medical bills, and barring any unforeseen complications, become pregnant and have a baby. So long as you can financially support yourself and said baby, your legal concerns are pretty much relegated to making sure you have a will naming a guardian for your child. The rest of the day-to-day care and financial support for your child will be left to you, and you alone, to decide and handle.

I suspect, though I have no statistics to back it up, that those “easy” situations make up just a small share of the percentage found by the Johns Hopkins researchers.

The bulk of unmarried mothers (and fathers) I’ve seen fit into one of three categories – all of which have different legal concerns and potential implications.

Scenario 1: The One-Night Stand (think Knocked Up).

Many clients who have come to me after becoming pregnant from a one-night stand or from a first or second date have routinely felt compelled to tell me that sleeping with that person so quickly was out of character. After I very quickly tell them that my office is a judgment-free zone, the next question is almost always asking me what a judge might think of them. While I can’t speak to how judges around the country (particularly in more conservative states) may view a woman pregnant from a one-night stand, I can tell you at least that in New York, no one cares.

If you find yourself pregnant from a one-night stand (and your plan is to keep the baby), feel free to hope for a happy ending like in Knocked Up, but prepare for the worst and everything in between. There are a lot of questions that merit serious consideration. Do you need financial support in order to raise the child? If so, you may need to seek child support. Consider also whether the father is going to want to be involved in your child’s life more than just financially and whether that will be positive or negative. What if the father says he will not be involved? All of these questions need to be thought about carefully and planned for, and a consultation with a family law attorney is critical. He or she will raise questions you probably never considered.

Scenario 2: Unplanned Pregnancy While In a Relationship (think The Object of My Affection)

Though I happen to know people who took an unplanned pregnancy early in a relationship and successfully turned it into a happy, long marriage (with additional children added thereafter), many times it just does not work out that way. The relationship may collapse shortly after the pregnancy is discovered or months or years after the birth. These situations can become more complicated because the parents have history together, and often the breakups are less than amicable. If possible, mediation is a great way to sit down in a non-threatening environment to discuss child support and custody/parenting time, but I still encourage you to consult with an attorney to find out the law in your state. Whether you end up mediating or litigating, you will want to share with your attorney any concerns about your ex that you have, which may impact his parenting. Do not forget to discuss anything negative you think your ex could reveal about you with your attorney.

Be forewarned: even if your ex reacts negatively to news about the pregnancy initially (including pressuring you to terminate), do not presume this will mean he has no interest in the child. Many times once the baby is born, a previously disinterested parent can become very interested in the baby. The reasons may be real – because he has simply fallen in love with your gorgeous newborn, or they may be staged – because he feels that this could position him to fight for custody and maybe even evade a child support obligation. Every state has different rules on custody and support, so contact a local family law attorney who can explain everything to you. Some situations require a great deal of strategy and/or planning.

If you do break up early during the pregnancy, I strongly advise you to meet with an attorney early on in the pregnancy (it’s fine to wait until the 20-week anatomy scan, but I wouldn’t wait too much longer). The reasons for this are both strategic and practical. Actually, even if you haven’t broken up, I still strongly advise you to meet with an attorney early on in the pregnancy. It’s never too early to ask as many “what if” questions as you can think of.

Scenario 3: Planned Pregnancy (while in a committed relationship, or otherwise, like in the movie Friends With Kids)

Whether you do not believe in the institution of marriage, refuse to marry until same-sex marriage is legal in all 50 states or don’t feel like taking on your sweet partner’s serious debt, many people in committed relationships plan (and have) children together without marrying. While these people are technically included in the Johns Hopkins University statistics, in the event their relationship ends, it feels more like a divorce than in the first two scenarios. I cannot in good conscience tell you that if you are planning a pregnancy with your committed partner that you should meet with an attorney first, because I would not give that advice to someone in a marriage. However, if you even have a shred of doubt that the relationship will last, a consultation with an attorney could be very beneficial.

In the rare scenario where two friends decide to have a baby together, think back to the movie Friends With Kids, and the dinner scene when all of the families go away together. Jon Hamm’s character reams out Jennifer Westfeldt’s character (and the baby’s father, who Hamm’s character is also friends with) for having irresponsibly had a baby together without formally working things out. Their characters are offended because they had planned the pregnancy, remained close friends and until that time, shared time with and expenses for the baby beautifully and willingly. I was nodding my head furiously at that scene (and not just because I think Jon Hamm is adorable). In fact, his very criticism of them ended up coming to fruition later on in the movie when Westfeld’s character decided she was in love with the baby’s father and he initially said he did not feel the same way. Westfeld’s character promptly moved out of Manhattan and into Brooklyn, and the baby’s father became very upset that he could no longer see the baby as frequently as when they lived in the same building. While they did not end up in court over it, rest assured that in most similar situations that aren’t Hollywood movies, they probably would.

In this situation, I strongly suggest that even if the father is your best friend in the whole universe, the two of you should enter into a formal agreement regarding custody, time-sharing, and financial support. Better to enter into such an agreement while you are on good terms rather than risking it and waiting until something goes awry.

Sometimes life imitates art and you can come away with a Hollywood ending for your pregnancy and the birth of your child. For the rest of the 64%, a well-negotiated written agreement that covers all the bases and has your child(ren)’s best interests at heart is the next best thing.

[Now for the requisite disclaimer: Nothing Jennifer Kouzi authors on this site should be considered legal advice, and no attorney-client relationship has been formed by virtue of you reading the above post. To contact her for individual inquiries, call 212.921.5526 or e-mail her]

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