Child custody is often the most high conflict area contested in divorce. Custody disputes can be just as heated when the children in question are “on the way.” Divorce will reshape a family, but high conflict divorces can impact if a parent has any legal relationship.
Even the most cordial negotiations require parents to explore exhaustive details about how the child will be raised. Meticulous attention to detail is imperative to ensure that each parent and the child can achieve the best possible results.
What Jelly Roll and Bunnie Xo et al. teach about this dilemma
In this blog, we often mine celebrity divorces for issues pertinent to high-net-worth couples. A celebrity split that recently made headlines recently is that of country artist Jelly Roll (a.k.a. Jason Bradley DeFord) and his wife of 10 years, podcaster Bunnie Xo (Alisa DeFord). Married in 2016, the couple seemed to share similar redemption arcs: Jelly Roll drew on his experiences with addiction, incarceration, recovery, and faith to win the Country Music Association’s New Artist of the Year award. Bunnie has been open about her history as an escort and in the adult entertainment industry before launching her popular Dumb Blonde Podcast.
Of interest for this discussion is the couple’s struggle with infertility and their efforts to have a child through IVF and surrogacy. The couple has publicly stated they intend to continue those efforts even though they are divorcing, which means their divorce settlement must cover a wide range of contingencies that could come into play if their efforts are ultimately successful.
In this regard, the DeFord divorce differs from past celebrity couples’ disputes over the disposition of frozen embryos, notably those involving Sofia Vergara and Nick Loeb (engaged but never married). While engaged, the couple underwent IVF and created two cryopreserved embryos. After ending their engagement in 2014, Mr. Loeb wished to implant the embryos using a surrogate. Ms. Vergara objected, arguing that their written agreement prohibited embryo gestation without both parties’ consent. Mr. Loeb pursued litigation in multiple jurisdictions over several years. Ultimately, courts ruled that Mr. Loeb could not use the embryos without Ms. Vergara's consent.
Fortunately, divorce law across the country has evolved to cover the implications of IVF technology. In New York, the law governing the disposition of frozen embryos derives from a combination of court decisions, such as Kass v Kass (91 NY2d 554 [1998]) and statutory reforms within the 2020 Child-Parent Security Act. Briefly, current law in New York holds that:
- Written embryo agreements are generally enforceable.
- Courts strongly favor enforcing agreements signed before the couple began IVF treatment.
- If no enforceable agreement exists, courts may apply equitable principles while considering the parties' competing reproductive interests.
- The Child-Parent Security Act expressly authorizes binding embryo agreements that satisfy statutory requirements.
New York has intentionally avoided labeling embryos simply as marital property. Instead, per Kass, embryos are resolved through contract principles rather than traditional concepts of property law.
What High-Net-Worth Families Must Know About Pregnancy in Divorce
Each child born to a couple changes the family dynamic. During divorce, the family dynamic is already undergoing an intense upheaval, and the new child is yet another variable. What complicates matters further is the uncertain, even precarious, nature of pregnancy itself. The parents’ greatest concern during pregnancy is whether the child will be born healthy. If all goes well, the couple will have at least one more mouth to feed. Multiple new mouths in the case of twins, triplets, etc. That means adjusting how the family pie is sliced. However, if the child is born with health challenges, a considerable portion of family resources may need to be reallocated to ongoing medical treatment, personal care, and a special needs trust to support the child into adulthood.
For high-net-worth families, any reordering of resources can be complex, involving substantial liquid assets, business interests, real estate, trust assets, fine art, luxury vehicles, retirement accounts, and vesting assets from executive compensation packages. The adjustments you make will impact your estate planning and your long-term financial security. Meticulous planning and principled negotiation are paramount, if you are going to protect your interests and your new child’s future.
Understanding the Unique Challenges
Pregnancy can intensify many of the issues spouses address during divorce, including:
- Financial planning and support
- Healthcare and insurance coverage
- Parenting expectations and future custody arrangements
- Living arrangements before and after the child’s birth
- Emotional stress and decision-making
- Protection of family wealth and inherited assets
- Estate planning and trust considerations
Since the child has not yet been born, certain aspects of the divorce process may require specific timing or additional legal steps, depending on state law.
A pregnancy during divorce also forces the spouses to address a couple of uncomfortable topics.
Points to Consider While Divorcing During Pregnancy
Parties to divorce generally want their settlement to be permanent and comprehensive, but those goals are often elusive, especially when growing children are involved. When a child is on the way, parties must exhibit even more patience and flexibility. Points to consider include:
- Timing — In some states, courts will not finalize a divorce until the child is born. But even if your divorce can proceed, you might need to revisit certain issues after the birth.
- Health insurance and medical costs — Pregnancy incurs significant medical expenses, making the maintenance of existing insurance imperative. You must also allocate responsibility for prenatal care expenses, and labor and delivery costs.
- Financial/estate planning — A new child can significantly affect household finances, requiring parents to re-evaluate current spending and long-term financial planning. Parents must take a proactive approach to providing all their children with the highest possible standard of living, while providing for their retirement and a legacy for their children. This is a good time to update your estate plan, including will and trust documents, beneficiary designations, guardianship designations, and wealth transfer strategies. Reliable advice from financial and legal professionals can help you make the right choices for your circumstances.
- Parenting plans for newborns and infancy — Although a newborn cannot immediately follow a traditional parenting schedule, parents can begin discussing expectations early for custody and visitation.
- Self-care — Given the emotional turmoil expectant parents are bound to experience, along with the loss of comfort a spouse provides, you must take affirmative steps to safeguard your emotional well-being. If you have a support network of close relatives and friends, so much the better. You should also consider consulting a therapist to help you process complex emotions.
Navigating this web of complexity on your own can increase feelings of frustration, loss, and anxiety. Keep in mind that help is often just a phone call away.
Uncomfortable Topic #1: Paternity
When married couples have children, the law generally presumes that the spouse is the child’s legal parent. However, when a wife becomes pregnant after the marriage has broken down, circumstances might prompt the husband to question whether he is the child’s biological father. If a husband suspects infidelity, he can challenge his paternity, demanding a DNA test. This can impact the timing of the divorce case, since courts generally wait until the child is born to order a test. However, there are several highly accurate methods of testing DNA during pregnancy, which pose no risk to the child or mother, such as non-invasive prenatal paternity testing, chorionic villus sampling, and amniocentesis.
In the past, paternity rights for same-sex couples were notoriously precarious. But in New York, under the Child-Parent Security Act, the presumption of parentage extends to same-sex couples where one spouse is not biologically related to the child, as well as to valid surrogacy arrangements, where the spouses have contracted with a woman who carries the child. New York expressly recognizes parentage based upon consent to assisted reproduction rather than genetics. The law permits courts to issue pre-birth parentage orders establishing the intended parents as the child's legal parents immediately upon birth.
Paternity comes with rights and responsibilities, which must be negotiated as part of the divorce settlement.
Uncomfortable Topic #2: Emotional States During Pregnancy
During pregnancy, fluctuating levels of estrogen, progesterone, cortisol, and other hormones can influence the mother’s brain chemistry and emotional regulation. Many pregnant women experience increased emotional sensitivity and irritability. Anxiety often increases, and pregnant women are more prone to depression. Symptoms can include persistent worry, racing thoughts, difficulty concentrating, sleep disturbance, muscle tension, rapid heartbeat, nausea, dizziness, and feelings of impending doom.
Many pregnant women report changes in their perception of interpersonal relationships, including a greater desire for emotional support and a heightened sensitivity to conflict. Changes in perception often affect a woman’s self-image, as they ponder problems ranging from work-life balance to body image. Cognitive changes, often referred to as "pregnancy brain," often include forgetfulness, reduced ability to concentrate, increased tendency toward distraction, and difficulty multitasking.
Though these changes are temporary, they can be disconcerting, especially without emotional support from a caring partner. Given that divorce requires emotional equilibrium, patience, and attention to detail, a pregnant mother navigating the process might be at a significant disadvantage.
Fathers can also experience psychological changes during their partner’s pregnancy. Expectant fathers often develop a stronger emotional attachment to their partner and unborn child, along with increased feelings of responsibility, protectiveness, and commitment to family life. These feelings can be sorely frustrated during divorce. Moreover, a study of men’s mental health notes that becoming a father often prompts men to reassess priorities, long-term goals, finances, and relationships. Researchers observed that “The role restrictions and changes in lifestyle often resulted in feelings of stress, for which fathers used denial or escape activities, such as smoking, working longer hours or listening to music, as coping techniques.”
A 2021 meta-analysis involving more than 40,000 fathers estimated that approximately 10.7 percent experienced clinically significant anxiety during the perinatal period, while systematic reviews have reported estimates from 3.4 percent to 25 percent. Heightened anxiety places expectant fathers at a greater risk of depression. It is also important to note studies showing that in abusive relationships, the victim’s pregnancy seems to be “a risk factor for severe intimate partner violence, including attempted/completed femicide.”
Most surprisingly, studies have shown that expectant fathers undergo hormonal changes, including modest decreases in testosterone, increases in prolactin, changes in cortisol levels, and alterations in oxytocin levels. Some expectant fathers experience Couvade syndrome, also known as sympathetic pregnancy, which mimics the mother’s symptoms.
What all this means is that whether you are the expectant mother or father, you might not be at your best during your divorce. You must weigh the costs and benefits of proceeding with divorce while under the influence of the pregnancy. You must also choose your legal representation carefully, so you can have confidence in the advice you’re getting. Legal counsel should relieve your stress, rather than add to it.
The Importance of Early Legal Guidance
Too many people wait for problems to arise before seeking legal advice. Early guidance during a pregnancy-related divorce can help you identify potential issues before they become costly or difficult to resolve. High-net-worth individuals have much to lose through delay. Experienced legal counsel can help you address complex financial matters, protect significant assets, coordinate with financial and tax professionals, and develop strategies that support your immediate needs and your child’s long-term future.
Divorcing during pregnancy presents unique legal and practical challenges that rarely follow a straightforward timeline. Questions about health insurance coverage, parentage, custody arrangements that cannot fully take effect until after birth, and estate plans that may require multiple updates can quickly become overwhelming. Families who experience the smoothest transitions are often those who address these issues proactively, rather than responding to them as they arise.
If you are navigating a divorce during pregnancy, or anticipate one, our attorneys at Bikel Rosenthal & Schanfield can help you evaluate the financial, custodial, and estate planning considerations before they become urgent. Call us today at 212.682.6222 to discuss your situation, or connect online.