Courtesy Danielle Drake
Lake of the Ozarks attorney Danielle Drake filed for divorce in December 2020. Later that month she discovered she was pregnant.
This reporting was supported by the International Women's Media Foundation's Reproductive Rights Reporting Fund.
December 2020 was a turbulent month for Danielle Drake, 32, of Lake of the Ozarks. On December 1, her husband said he was going out with a friend, but he lied. He was actually having an affair. She filed for a divorce less than a week later, on December 7.
Then, not long before Christmas, Drake found out she was pregnant.
Drake knew immediately she had to file a second, amended petition for divorce. She also knew the impact her pregnancy would have on the divorce proceedings. Drake, who earned a law degree from University of Missouri Kansas City has been practicing family law for two years, was well aware that in Missouri, women who are pregnant can't get a divorce.
Missouri law states that a petition for divorce must provide eight pieces of information, things like the residence of each party, the date of separation, and, notably, “whether the wife is pregnant.” If the answer is yes, Drake says, "What that practically does is put your case on hold."
There is a lot of disagreement online about whether pregnant Missouri women can get divorced. The RFT spoke to multiple lawyers who handle divorce proceedings and they all agreed that in Missouri a divorce can't be finalized if either the petitioner (the person who files for divorce) or the respondent (the other party in the divorce) is pregnant.
Dan Mizell, an attorney in Lebanon, Missouri, who has been practicing law since 1997, says that certain aspects of the divorce can proceed, but everything having to do with custody of the unborn child is frozen in place until birth or a pregnancy-ending event like a miscarriage. The court can issue temporary orders related to things like dividing up property, Mizell says. "But they can't do a final decree of divorce until she delivers the baby."
Drake says that this is true even in the case of a divorce that is completely uncontested. "If the couple is not fighting, and they're just saying, ‘Nope, she's gonna take the baby and 100 percent of the things’ they still cannot go before a judge and have that finalized until after there's a baby born," she says.
"It is a shock to some people," Mizell adds. "Sometimes it comes up at the very last minute, because the wife is usually asked to say under oath whether she is pregnant or not, which can be offensive at times, and also a bit ridiculous at others."
Drake also points out what seems to be a double standard in regards to how the state treats an unborn child in a divorce proceeding compared to in abortion law.
She says that the whole basis for Missouri putting the pause on a divorce proceeding until a child is born is because Missouri divorce law "does not see fetuses as humans."
"You can't have a court order that dictates visitation and child support for a child that doesn't exist," she says. "I have no mechanism as a lawyer to get that support going. There's nothing there because that's not a real person."
This aspect of Missouri divorce law has gotten more attention in the weeks since the Supreme Court overturned Roe v. Wade, triggering a ban on abortion in Missouri except in cases of medical emergency. Though what is meant by medical emergency is still ambiguous.
"This all goes back to the fact that we don't trust women," says Jess Piper, an outspoken advocate for reproductive rights who is running as a Democrat to be the state representative for the 1st District, in the rural northwest corner of the state. "I've heard actual reports of women who have been in domestic violence situations where their husbands withheld birth control from them, purposely creating a pregnancy so that she can't leave."
Piper adds that for some women, the new abortion law in Missouri will be just another obstacle in what can already be a fraught process of leaving a marriage.
Drake and Mizell both say the law is in need of updating.
Mizell says that even if the woman is pregnant by a man other than her husband, the divorce is still on hold.
Drake says that this outdated law is symptomatic of a much larger issue in family law, which is that the "large and clunky legal system" provides only a one-size-fits-all approach, but no two families are alike.
"It's very, very hard to write broad, sweeping laws with families, because every family is different. Every family has unique circumstances."
Drake's divorce is still working its way through the courts. Her son was born in August 2021, and she filed a third petition, this time affirming to the state she is in fact not pregnant.
