Other states provide statutory answers that Missouri does not

Missouri’s new law allowing a divorce to be finalized during pregnancy has received a surprising amount of attention. I previously wrote about the subject in Missouri’s new pregnancy divorce law raises difficult questions for courts, where I questioned how courts would handle custody, paternity and child support involving a child who has not yet been born. I followed that with another article, Pregnancy, divorce and 50/50 custody: has Missouri gone far enough?, examining whether the new law could create additional complications involving custody and Missouri’s policy favoring frequent, continuing and meaningful contact with both parents.

The issue has also attracted significant media attention. I discussed the law and what I believe are unresolved custody questions with KMOV First Alert 4, which reported on my concern about how a court can conduct a custody proceeding involving a child who has not yet been born. I also discussed the new law with KSDK 5 On Your Side, and the issue received national attention when I spoke with Newsweek about the implications of Missouri changing its divorce law.

Because this topic has received so much attention, I am making these articles a series. Much of the public debate has focused on whether a pregnant spouse should be permitted to obtain a divorce, but there is another question that may ultimately prove more difficult: What is a Missouri court actually supposed to do with custody, paternity and child support when the child has not yet been born?

That may be the biggest problem with Missouri’s new law. The General Assembly made clear that pregnancy cannot prevent a court from granting a divorce, but it did not provide similarly clear statutory language explaining how a court is supposed to handle the unborn child’s issues. Other states have enacted express statutory mechanisms for separating marital status from issues that must be resolved later, while Missouri has not done so with the same clarity.

Missouri changed the rule but did not provide the procedure

Effective August 28, 2026, § 452.305, RSMo., provides that pregnancy status shall not prevent a court from entering a judgment of dissolution of marriage or legal separation. Section 452.310 is likewise amended as part of the legislation, so the first question is answered: pregnancy itself cannot prevent the divorce.

But what happens next? Section 452.305 ordinarily contemplates that a dissolution court will address issues involving custody, child support, maintenance and property before entering its judgment. The new legislation does not expressly say that the court may dissolve the marriage and reserve custody until after the child is born, authorize the court to bifurcate marital status from the unborn child’s custody and support issues, or explain whether the dissolution court retains jurisdiction after entry of the divorce to decide those matters later.

That absence of statutory direction may be the heart of the problem, and it is potentially a problem for both mothers and fathers. Once the divorce has been entered, both parents need to know what they must do to establish their rights and responsibilities concerning the child. Either parent may want sole or joint custody, parenting time and child support. Depending on the eventual custody arrangement and the parties’ circumstances, either the mother or the father could be the parent seeking support from the other. Neither parent should have to guess which statutory chapter provides the proper procedure.

Do they return to court under Chapter 452 and ask the dissolution court to determine custody and support after the child is born, or do they proceed under Missouri’s Parentage Act in Chapter 210? Does the answer depend upon whether paternity is contested? Can the original dissolution case remain partially pending even though the marriage itself has already been dissolved? The new statute does not clearly answer these questions, leaving Missouri trial courts to determine the procedure unless the General Assembly provides further direction.

Illinois expressly permits issues to be reserved

Illinois provides an important comparison. 750 ILCS 5/401(b) addresses entry of a dissolution judgment while other issues remain unresolved and permits a court, under the circumstances specified in the statute, to enter the dissolution while reserving matters involving parental responsibilities, child support, maintenance and property.

That is important statutory language because Illinois does not simply tell its judges that a marriage can end and leave them to determine from unrelated statutes what happens to everything else. The legislature created a mechanism for terminating the marriage while other issues remain pending. That is the kind of statutory bridge that is missing from Missouri’s new pregnancy provision.

California expressly permits a status-only divorce

California is even more direct. California Family Code § 2337 expressly allows a court to “sever and grant an early and separate trial” on the issue of dissolution of marital status apart from other issues. This is commonly referred to as a status-only divorce.

The concept is straightforward: whether two people remain married is one legal issue, while property, support, custody and other matters are separate issues. California expressly gives its courts authority to terminate marital status without requiring every other issue in the case to be completed first. Missouri’s new statute does not contain comparable express language.

Colorado also recognizes deferred issues

Colorado likewise provides statutory authority for separating dissolution from other matters. Colorado Revised Statutes § 14-10-106 addresses entry of a decree of dissolution and circumstances in which other issues may remain for later determination.

The importance of Colorado’s approach is not that its statutory scheme is identical to the pregnancy problem Missouri faces. Rather, Colorado’s legislature expressly contemplated the procedural reality that marital status and every other issue in a domestic-relations case do not necessarily have to be decided simultaneously. The legislature supplied a procedural mechanism instead of leaving courts to create one.

Pennsylvania actually calls it bifurcation

Pennsylvania makes the point even more directly. 23 Pa.C.S. § 3323(c.1) is expressly titled “Bifurcation” and permits a court, when the statutory requirements are satisfied, to enter a divorce decree before final determination of other matters identified in the statute, including custody, child support, alimony, attorney fees and property rights.

The significance is difficult to miss. Pennsylvania’s legislature did not leave the existence of bifurcation to implication. It put bifurcation in the statute and explained when it can occur. Missouri did not do that when it amended its pregnancy-divorce law.

Washington may have the clearest answer for pregnancy

Washington may provide the most instructive comparison because its statute deals directly with pregnancy. RCW § 26.09.030 provides that pregnancy cannot be the sole basis for denying or delaying a dissolution, which sounds much like Missouri’s new law.

Washington, however, goes an important step further. Its statute expressly provides that granting a dissolution while a party is pregnant does not affect further proceedings under Washington’s parentage laws. The statutory framework therefore separates two questions: whether the adults should continue to be legally married and how parentage and the legal issues concerning the child will be handled after birth.

Missouri enacted language answering the first question. It did not provide the same express roadmap for the second.

These statutes demonstrate the problem in Missouri

The comparison is important because this is not an abstract procedural concept that legislatures cannot put into words. Illinois provides for reservation of unresolved matters; California expressly permits severance of marital status; Colorado recognizes deferred issues; Pennsylvania has a statutory subsection literally entitled “Bifurcation”; and Washington specifically addresses pregnancy and subsequent parentage proceedings.

Missouri could have enacted similar language, but it did not. Instead, Missouri says that pregnancy cannot prevent entry of a dissolution judgment without clearly explaining what happens to custody and support when the child has not yet been born. That statutory difference is at the center of the problem.

The lack of direction can hurt both mothers and fathers

This should not be viewed as an issue that affects only mothers or only fathers because procedural uncertainty can disadvantage either parent. A mother may want sole or joint custody, parenting time and child support after the child is born. A father may want exactly the same things. A father is not necessarily just the parent seeking visitation or paying support. He may seek sole custody himself and, depending on the circumstances, may seek child support from the mother.

The problem is that neither parent has a clear statutory roadmap after a divorce is entered during pregnancy. If a mother wants custody and support, does she seek that relief in the original dissolution proceeding under Chapter 452 or proceed under Chapter 210? If a father wants custody and support, he faces the same question. If either parent seeks joint custody or equal parenting time, what pleading should be filed and under which statutory chapter?

Parents should not have to establish their rights by guessing which statutory procedure a particular judge will accept. The uncertainty also creates the possibility of inconsistent practices across Missouri, with one circuit treating custody and support as reserved Chapter 452 issues, another expecting a Chapter 210 proceeding, and another potentially using some combination of the two.

Eventually, Missouri appellate courts may provide guidance. But mothers and fathers should not have to finance appellate litigation simply to determine what procedure the legislature intended. Clear procedural rules benefit mothers, fathers, children, lawyers and judges alike.

Custody is the central problem

A judge cannot meaningfully enter a normal parenting plan for an unborn child. The court does not yet know the child’s health or needs, precisely when the child will be born, or what circumstances may exist following delivery. If paternity is contested, Missouri law creates an additional complication.

This is why I believe the lack of statutory language addressing custody is the biggest problem with Missouri’s new law. It is one thing to tell a judge that pregnancy cannot prevent a dissolution; it is another thing to explain what the judge is supposed to do with a custody issue that cannot realistically be adjudicated yet. Other states have expressly provided mechanisms for separating marital status from unresolved issues, while Missouri has not provided comparable pregnancy-specific language.

Missouri’s Parentage Act may provide one route

Section 210.826, RSMo., allows an action to determine the existence or nonexistence of a father-child relationship and specifically contemplates that such an action can be brought before a child is born. But § 210.826.4 provides that when the action is brought before birth, the proceedings generally must be stayed until after birth, except for service of process and depositions to perpetuate testimony.

That provision is significant because Missouri law itself recognizes that some parentage issues simply cannot proceed normally until the child is born. Thus, under the new law, the Chapter 452 dissolution can proceed while a related Chapter 210 proceeding may have to wait.

Section 210.829, RSMo., makes the issue even more interesting because it expressly permits a parentage action under §§ 210.817 through 210.852 to be joined, by separate document, with an action for dissolution, annulment, separate maintenance, support, custody or visitation.

One possible procedure therefore seems to be that the court grants the divorce under Chapter 452 while the parentage matter is joined under § 210.829. If necessary, the parentage proceeding remains stayed under § 210.826 until the child is born, after which the court determines parentage, custody and support. That procedure might work, but is that what the General Assembly intended when it enacted the new pregnancy-divorce law? The amendments do not say.

Why should married parents have to use the Parentage Act?

This creates another interesting question. Parentage actions are commonly associated with parents who were never married, although Missouri’s Parentage Act is not actually limited to unmarried parents. Section 210.822, RSMo. creates presumptions of paternity arising from marriage, including a presumption when a child is born during the marriage or within 300 days after the marriage is terminated by dissolution.

The 300-day provision is particularly noteworthy because Missouri law has long contemplated the possibility that a child could be born after the parents’ marriage has already ended. But if the parents were married and their divorce is already pending under Chapter 452, why should they potentially have to add a Chapter 210 parentage proceeding simply because the baby was not born before the dissolution judgment?

Perhaps they do not. Perhaps the dissolution court simply retains jurisdiction over the unresolved child-related issues and adjudicates them under Chapter 452 after birth. But the new statute does not expressly say that, which is precisely the uncertainty the legislature could have eliminated.

What about the child’s last name?

There may be other practical issues that received little attention as well. One example is something as basic as the child’s last name.

Suppose the parties divorce several months before the baby is born. What surname will appear on the child’s birth certificate? Does the child receive the father’s surname, the mother’s surname, a hyphenated name or some other name? What happens if the parents disagree?

The answer should not simply be assumed to favor either parent. A mother may want the child to have her surname after the marriage has ended. A father may want the child to have his surname. Both may have legitimate reasons for their positions, and a disagreement over a child’s surname can itself become a legal issue.

Missouri courts already have case law dealing with disputes over children’s surnames, but a divorce entered before birth adds another wrinkle. If the marriage has already been dissolved and custody and parentage have not yet been adjudicated, where does a parent raise a dispute over the child’s name? Is it part of the Chapter 452 proceeding, the Chapter 210 proceeding, a separate name-change proceeding, or something addressed through Missouri’s birth-registration laws?

Again, there may be answers elsewhere in Missouri law, and courts may be able to work through them. But that is precisely the broader point. Once Missouri expressly authorized the divorce to occur before the child’s birth without creating a clear statutory procedure for the unresolved child-related matters, lawyers and judges may have to assemble the answers from multiple statutes and existing case law.

Custody and support are the most important examples, but they may not be the only ones. Even the child’s last name could become another issue the legislation did not expressly address.

Can Missouri courts simply bifurcate the case?

There is an argument that Missouri courts already possess sufficient authority to bifurcate. Missouri’s dissolution law has historical roots in the Uniform Marriage and Divorce Act, and the Uniform Act contemplated circumstances in which dissolution could occur while other matters were reserved for later determination. That history makes it too simplistic to say that Missouri courts categorically lack the power to bifurcate.

But the statutory comparison is hard to ignore. Pennsylvania expressly says “Bifurcation.” California expressly authorizes a separate trial on marital status. Illinois expressly permits unresolved matters to be reserved. Washington expressly deals with what happens to parentage proceedings following a pregnancy-era dissolution. Missouri’s legislature could have said something similar, but it did not.

That matters when a judge is being asked to terminate marital status while leaving one of the most important issues in a family case unresolved. If Missouri intended courts simply to bifurcate these cases and decide custody after birth, why not say so?

Was the omission intentional or accidental?

That may be the most interesting question surrounding the new law: Was the absence of custody and bifurcation language intentional, or was it simply something nobody thought about? The legislation does not conclusively answer that question.

It is possible lawmakers deliberately intended to make a narrow change by eliminating pregnancy as an impediment to dissolution while leaving existing Missouri law to handle everything else. If so, the omission may have been deliberate. But there is another possibility: perhaps the legislative debate focused so heavily on the public-policy question of whether pregnancy should prevent a divorce that insufficient attention was paid to what family court judges, mothers and fathers would actually have to do once the divorce was permitted.

I do have some concern that the omission may not have been entirely accidental. Some advocates argued that Missouri should go further and that a wife should not even have to disclose in the dissolution petition whether she is pregnant. The General Assembly ultimately did not go that far. Missouri’s amended § 452.310 continues to require the petition to state whether the wife is pregnant, while adding that pregnancy status cannot prevent the court from entering the dissolution judgment.

That broader debate makes me wonder whether there was some reluctance to put more detailed language into the dissolution statute concerning an unborn child. If some advocates preferred pregnancy to play an even smaller role in the dissolution proceeding, perhaps language expressly reserving custody, support and parentage issues was not viewed as necessary or desirable.

But I do not know that, and I would not presume to know the General Assembly’s intent without clearer legislative history. It is equally possible that lawmakers were focused on fixing one specific problem—judges delaying divorces because of pregnancy—and simply did not focus on all of the procedural consequences that could follow.

The comparison with other states nevertheless makes the omission difficult to ignore. Legislatures elsewhere have expressly addressed bifurcation, reservation and post-dissolution parentage proceedings. Missouri could have done the same. Whether the decision not to include such language was intentional or whether the custody and support problem was simply overlooked is something the statute itself does not answer.

One additional sentence could have provided much greater clarity

Missouri could have expressly stated that pregnancy does not prevent entry of a dissolution judgment and that such a judgment does not affect the court’s jurisdiction to determine parentage, custody, parenting time or support following the child’s birth. Alternatively, the legislature could have expressly authorized the court to reserve those issues.

Either approach would give Missouri judges and litigants a clear roadmap. Instead, the new statute tells courts that pregnancy cannot prevent the divorce without expressly telling mothers, fathers, lawyers or judges what they are supposed to do about custody and support afterward.

This is not merely a technical drafting concern. Either parent may seek custody, parenting time and support, depending on the facts of the case. There may also be disputes involving parentage and even the child’s surname. Yet the threshold procedural question remains the same: Where and how are those issues supposed to be litigated after the divorce has already been granted?

Missouri may have solved only half of the problem

The new law addresses a legitimate concern. Pregnancy, standing alone, should not necessarily force two people to remain legally married when their marriage is otherwise ready to be dissolved. But once the General Assembly made that change, it exposed the second half of the problem.

Other states demonstrate that legislatures can provide clear answers. Illinois has statutory reservation language. California permits status-only dissolution. Colorado provides for deferred issues. Pennsylvania expressly provides for bifurcation. Washington addresses pregnancy and subsequent parentage proceedings.

Missouri’s new law does not provide comparable clarity about custody of an unborn child. That lack of statutory language concerning custody may be the biggest unresolved problem with the legislation, and the uncertainty potentially affects mothers and fathers equally.

Maybe the General Assembly intended Missouri judges to use existing Chapter 452 procedures. Maybe lawmakers expected Chapter 210 to supply the answer. Maybe they assumed Missouri courts already had authority to bifurcate these cases. Or perhaps nobody focused sufficiently on all of the issues that arise when a marriage ends before the baby is born—including custody, support, parentage and potentially even the child’s last name.

Missouri has now made clear that a court can grant a divorce during pregnancy, but parents should not have to guess what they must do after that judgment to establish their legal rights and responsibilities concerning their child. For now, the statute leaves Missouri’s mothers and fathers asking the same basic question: Chapter 452 or Chapter 210? Unless the General Assembly provides an answer, Missouri’s courts may be left to figure it out.

If you are going through a divorce during pregnancy, Stange Law Firm can help. Contact us online or at 855-5-FOR-YOU.