Divorce when you are pregnant- but the child is not your husband's

Making difficult decisions like filing for a divorce when you are pregnant can be extremely taxing from an emotional perspective. An already tough decision is exacerbated by the fact that you are preparing yourself and your world for the birth of a child. Being able to withstand all of the changes associated with a pregnancy and a divorce can take a look of mental fortitude as well as a strong support system.

As complicated a situation as the above scenario would end up being, I came across one this past weekend that could top even that. A young woman came into the Law Office of Bryan Fagan for a free consultation to discuss divorcing her husband. This alone was not remarkable. However, what she told me next definitely was.

She disclosed that she was pregnant but the child’s father was not her husband. This potential client wanted me to walk her through the legal aspects of this situation and to let her know how her pregnancy would affect the proceedings. What follows in this blog post is a written description of the conversation that this woman and I shared.

To be, or not to be (presumed the father of a child)

To begin, if you are married to a man and become pregnant there is a legal presumption in Texas that your husband is the father of your child if the child is born during the marriage. Even if a divorce occurs and the child is born within 300 days of the date of divorce, that child is presumed to belong to your ex husband.

The Texas Family Code governs all matters related to this discussion and the bottom line is that the law in Texas looks for reasons to declare your husband to be the father of a child that you give birth to during your marriage or in the months immediately following the termination of your marriage.

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

Who’s the daddy? Don’t wait longer than four years to find that out

A lawsuit must be filed within four years from the birthdate of the child to determine parentage if there is a presumed father in place at the time of birth. Meaning, if you are the mother of the child, the biological father of the child or the presumed father of the child you must file your lawsuit before the child turns four years old in order to have the court look into the matter.

Two exceptions to this rule would be if the presumed father did not bring a lawsuit during this time period because he was misled to believing that he was the biological father of the child or if the presumed father and mother of the child never lived together or engaged in sexual intercourse with one another at the time the child was conceived.

The path of least resistance to overcome the four year requirement is to show that the presumed father (in this situation, your husband) did not reside with you nor have sexual relations with you at the time of the conception of the child. However, if you and your husband are not able to prove this to a court then overcoming the “husband is the father of the wife’s child” presumption can be extremely difficult.

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.

The divorce is filed, how to get biological father involved

In order so that all the parties to this scenario have an opportunity to present themselves in front of a judge, you or your spouse must include the biological father as a party to the divorce and then request the court to administer a genetic examination of the parties to figure out who actually is the biological father of the child.

How the child of an affair can complicate other matters related to your divorce as well

If you thought that it was just the portion of the divorce that deals with children that could be impacted by being pregnant with another man besides your husband’s child, then you would be wrong. The fact remains that if this child is eventually found to be legally the child of the correct man, it can create a scenario where your just and right portion of the community estate is not so just and right.

By this I mean that if your spouse wants to assert that the reason for the divorce is due to your infidelity then there are ways to prove that. A nice piece of evidence with which your spouse could utilize would be the child him or herself. Reason being is that the child is a great example of adultery having occurred during your marriage to your husband

Concluding Thoughts- I’m Pregnant but the child is not my husband’s

An important thing to keep in mind is that it is best to act sooner rather than later when attempting to discern who is the actual father of the child is.

There may be a lot of nervous people (from all sides) but delaying the big update is not advisable. For one, your divorce cannot conclude without one man being ordered to abide by the terms of the orders on conservatorship, possession, access and visitation of the child. For another, making sure to bring this issue to the court’s attention forces the court to make a decision and look into it further while the four year statute of limitations is still open.

Questions on paternity or any other family law subject? Call the Law Office of Bryan Fagan

All across southeast Texas, people have been proud to call the Law Office of Bryan Fagan their counselors and attorneys .To learn more about our office, all you have to do is call our phone number and set up a time to come in and speak to one of our licensedfamily law attorneys. A consultation is always free of charge and are available six days a week. I appreciate your time and attention in allowing me to present this blog post today.

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Other Articles you may be interested in:

  1. Husband Not the Father, what do I do in a Texas Divorce?
  2. I am not the biological father but I want to be - Paternity by Estoppel?
  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 | Spring Divorce Lawyer

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 a Spring, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Spring TX is 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 Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, 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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