(Getty Images).
What the public thinks the law is can matter more than what a law on the books actually says. So inaccurate or exaggerated reporting on a problematic law can make it even more harmful in practice.
Over the years, I have written about a number of viral news stories that inadvertently misrepresent the law, causing widespread misunderstanding with the potential to get people hurt.
Some examples include viral stories that wrongly told victims and potential perpetrators that revenge porn isn’t illegal, that you have no recourse if someone refuses to stop touching your pregnant belly and that in some states it is legal to shoot an escort who refuses to have sex.
Outraged discourse about the U.S. Supreme Court’s 2014 Hobby Lobby decision caused many people to believe incorrectly that most women had lost insurance coverage for contraception. Imprecise reporting on Texas’ “bounty hunter” abortion law has led people to think that assisting someone in obtaining a legal abortion out of state exposes them to liability, even though a Texas court has explained the law does not do that.
You have to know your rights in order to exercise them. And if a legal problem is misunderstood, the attempted solutions may be inadequate or make things worse.
This is happening with the stubbornly enduring meme that “pregnant women in Missouri can’t get divorced” and “there are no exceptions for domestic violence.” This claim is hitting the headlines again due to the well-intentioned, but ill-considered, proposed federal legislation that it has inspired.
I have previously explained why the portrayals of Missouri law aren’t accurate and argued that the misperception that there is no use in filing for divorce while pregnant is dangerous to women.
No, Missouri law does not require a pregnant woman to stay with her husband
The viral story does contain a grain of truth in that there are problems with the text and application of the law that should be addressed. But reporting that misrepresents the problem provides us with outrage instead of solutions.
Despite false reporting to the contrary, Missouri’s law does not say a pregnant woman “cannot file for divorce.” Nor do we have a “law on the books” or “blanket ban” on finalizing a divorce while pregnant.
It does not “turn out that Missouri is one of four states that doesn’t let pregnant women finalize a divorce.”
ƒWhat is true is that Missouri’s divorce statute inadvisably requires that a petition for dissolution of marriage state “whether the wife is pregnant.” It is also true that judges do not generally finalize divorces while a party is pregnant.
This is so that paternity can be established and custody and child support can be ordered. In the vast majority of cases, it will be to the benefit of both parties to wait to finalize so that they can avoid the time, expense and heartache of going back to court. It is also a more efficient use of the resources of overburdened courts.
In the minority of cases where someone wants the divorce granted during pregnancy, the law gives judges that discretion.
Whether they are willing to use it is the issue. I spoke to lawyers from different parts of the state and outside the state who have had varying experiences. Multiple attorneys told me they’d had a case in which a judge granted a divorce during pregnancy where circumstances warranted.
One attorney told me she doesn’t know any judges who would refuse in an abuse situation. But another told me that in her area judges know the law gives them discretion but don’t feel comfortable using it even in domestic violence cases, and lawyers don’t feel comfortable pushing them. She said that these constitute a tiny number of outlier cases but that these are so extreme that the law needs to be amended to more explicitly authorize and encourage judges to handle them differently.
So let’s do that. ASAP. (Meet me at my Substack for more on how.)
What we should not do is continue the game of telephone that has caused people across the country to think Missouri has a special law that requires pregnant women to stay with abusers.
I did the 50 state scan that I said I wouldn’t do. By my rough count, we are one of 14 states that have statutes that require disclosing pregnancy status when filing for divorce. Another 13 require pregnancy disclosure in their court forms (which are mandatory in some states and the only real option for self-represented litigants in others).
So essentially, the majority of states currently require disclosure at filing.
The practice of not finalizing divorces during pregnancy is less quantifiable, but seems to be typical just about everywhere, with a handful of states making it easier to finalize before the baby is born.
Thus, the incorrect reporting that only a few states have laws like ours is obscuring how widespread the issue is.
The story of one impacted Missouri woman who stayed with her abusive husband has been reported by multiple outlets with conflicting details about what happened.
One report will say her lawyer told her she couldn’t file because she was pregnant. Another will say she did file, but had to file again without any explanation of why that would happen. All of them leave the reader with the impression that her living with her husband in fear for her life was a natural consequence of Missouri’s law, rather than a situation in which something went horribly wrong.
When I spoke to this woman last week, she did not remember her lawyer telling her she couldn’t file or giving her a reason she should wait. As she told me and has recounted elsewhere, she learned from the lawyer that she would need to disclose her pregnancy and because of her pre-existing impression that judges won’t grant a divorce if they know a person is pregnant, abandoned her effort to file.
I see that as an information problem that caused a woman in crisis to endure further suffering unnecessarily. The virality of “pregnant women can’t get divorced” can only make that information problem exponentially worse.
Even worse would be legislation that doesn’t solve the problem — or exacerbates it.
The bill proposed at the state level that inspired the first round of media coverage would amend the list of required statements in a divorce petition to read:
(5) Whether the wife is pregnant; however, pregnancy status shall not prevent the court from entering a judgment of dissolution of marriage or legal separation;
That maintains the bad disclosure requirement while going too far on the finalization issue.
Courts need to be allowed to delay a divorce judgment because of pregnancy status. For example, if all other issues are resolved and a husband wants the divorce granted immediately, but the wife needs to stay on his health insurance, or if the pregnant spouse does not want or cannot afford to have to come back to court after the child is born.
Proposed federal legislation called the “Pregnancy Empowerment Act,” has been endorsed by 28 members of Congress and major domestic violence groups. It is also not good.
A press release about the bill says that it will both “prohibit any jurisdiction from requiring the disclosure of pregnancy when filing for divorce” and “prevent states from considering a person’s pregnancy status when finalizing a divorce.”
I don’t read the bill to do either of those things, but the latter provision would be bad if it was in there. The substance of the bill reads:
“No state may take pregnancy status into consideration when considering the filing of a petition for divorce.”
It would require states not to “consider” pregnancy status at filing but doesn’t say they can’t make you disclose it in order to file, as most states currently do. And it isn’t empowering to bar courts from considering pregnancy status at filing if the pregnant party wants it considered. For example, being pregnant could be a reason to argue the court should order more temporary support because it impacts how much a party can work, or that the court should let the pregnant party stay in the marital residence, or that the pregnancy is more reason an order of protection is needed.
Pregnancy could even be a reason to argue the divorce should be expedited.
Despite what the press release says, the bill would not bar courts from considering pregnancy when finalizing either, and it would be a bad idea to amend it to do so because people may want their pregnancies considered for the reasons discussed above.
My understanding is the “Pregnancy Empowerment Act” is a well-intended response to the national outrage that has flowed from misrepresentations of Missouri’s law. It’s an example of how the stories we tell about the law change behaviors and legislation.
So let’s get them right. We want women to know they have rights under current law, and, where those rights are falling short, enact targeted solutions to fix the actual problems.