Husband Not the Father, what do I do in a Texas Divorce?

This year I have had several consults in which the wives I have met with have brought up how their husbands are not the father of one of their children.

In many of these consults the women were surprised to learn that this would somehow complicate their divorce. Many aspects of a Texas divorce regarding children are like those of a Texas suit affecting parent child relationships that unmarried couple go through when they need court orders regarding children. However, there are differences which we will explore in today’s blog topic.

The Presumption of Paternity

A good starting point for understanding how an extramarital child can complicate a divorce is Texas Family Code Section 160.204 which states that:

  1. A man is presumed to be the father of a child if:
  1. he is married to the mother of the child and the child is born during the marriage;
  2. he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  3. he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  4. he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the vital statistics unit;

(B) he is voluntarily named as the child's father on the child's birth certificate; or

(C) he promised in a record to support the child as his own; or

In essence the Texas Family Code is designed to try and find a husband as being the father of any child born during the marriage or near the time of the marriage.

Presumption of Maternity

As an interesting trivia fact. Texas Family Code section 160.106 states that “the provisions of this chapter relating to the determination of paternity apply to a determination of maternity.”

I have not yet had a case where this part of the family code has come up. There are a lot of questions on exactly what this section of the family code means now that same sex-marriages are recognized in Texas.

Age 4 of the Child

Another important section of the Texas Family Code is section 160.607 which states:

  1. Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.
  1. A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:
  1. the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
  2. the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child's biological father based on misrepresentations that led him to that conclusion.

Generally, under the Texas Family Code, there is no time limitation for a suit to adjudicate parentage if the child has no presumed, alleged, or adjudicated father.

However, to adjudicate parentage of a child with a presumed father the suit must be brought within four years of the anniversary of the child’s birth.

If a parent wants to overcome this four-year limitation, a presumed father must not have lived with the mother or engaged in sexual intercourse with her during the probable time of conception. The presumed father also must never have represented to others that the child was his own.

If two people live together as husband and wife, with a child born during their marriage, and meet the requirements of Texas Family Code 160.607(b) it can be very difficult to overcome.

To be the Father or Not?

Some of the most contentious Texas divorces I have seen have involved extramarital children. Usually it was regarding whether the non-biological father was going to continue being the father of the child.

In most the cases to date it has been the mother arguing against the non-biological father remaining as the father and the non-biological father arguing that he should be allowed to continue in his role as dad.

This was generally because the non-biological father had bonded with the child and wanted to continue in their role as father with all the rights and responsibilities that entailed including child support.

If there was an argument against the non-biological father remaining as a parent one of the fighting spouses usually would:

  1. Draft the biological father into the case to establish paternity and
  2. File a motion for genetic testing

There is case law that would support both positions on this topic and I will include a link to an article I wrote regarding how a non-biological father can fight to remain so at the bottom of this page.

Adultery – Fault and Divorce

Other than the sticky child issues during a divorce, the extramarital child may be relevant as to fault grounds and the division of property in a divorce in Texas.

Like most states, Texas’s “no fault” divorce statutes allow for the marriage to be dissolved without allegations and proof of fault.

This means there is no need for the court to decide which spouse was the source problem for the failure of the marriage. With a “no fault” Texas divorce, the marriage is dissolved because it had become “insupportable”.

However, fault grounds can be relevant in divorce when dividing the community property.

The important language in the Texas Family Code is a "just and right division" and not a 50/50 split as some people think.

In Texas, adultery is considered a fault ground. If proven it a divorce court can consider a spouse’s adultery when dividing up the community property.

However, the burden of proof for proving adultery is clear and convincing. Mere suggestion or innuendo is not enough to prove adultery. Ayala, 387 S.W.3d at 733.

Another important fact about adultery in Texas is that it takes the literal definition of adultery in that sexual intercourse must have taken place.

Really good proof that adultery took place would be an extramarital child.

In either of these scenarios the complicating factor of an extramarital child can turn what could have been an easy divorce into a legal maze full landmines that will take a good Houston Divorce lawyer to help you navigate.

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Other Articles you may be interested in:

  1. I am not the biological father but I want to be – Paternity by Estoppel?
  2. Can I sue my spouse's mistress in Texas?
  3. My Spouse Has Accused Me of Adultery in my Texas Divorce and I Haven't
  4. When is, Cheating Considered Adultery in a Texas Divorce?
  5. Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
  6. Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
  7. 6 things You Need to Know Before You File for Divorce in Texas
  8. Texas Divorce Morality Clause: Be Careful What You Ask For
  9. What does Insupportability or No-Fault in a Texas Divorce Mean?
  10. Explaining the Contested Divorce Process in Texas

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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