Navigating Divorce Laws in Texas When Married but Pregnant by Another Man

This year, I’ve had several consultations where wives mentioned that their husbands aren’t the fathers of one of their children. Married women who become pregnant by another man often inquire about the related laws in Texas. Many times, these women were taken aback by the realization that it could complicate their divorce. 

The Presumption of Paternity

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

A man is presumed to be the father of a child if:

  • he is married to the mother of the child and the child is born during the marriage;
  • 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;
  • he married the mother of the child before the birth of the child in apparent compliance with the 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;
  • he married the mother of the child after the birth of the child in apparent compliance with the 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. So, to be married but pregnant by another man can be complicated with such laws in Texas.

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 the 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.
  2. 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.

Under the Texas Family Code, there is no time limit for a parentage suit if the child has no presumed, alleged, or adjudicated father.

However, to establish parentage for a child with a presumed father, the suit must be filed within four years from the child’s birth anniversary.

To bypass this four-year limit, a presumed father must not have cohabited with the mother or engaged in sexual intercourse with her around the probable time of conception. The presumed father should also not have represented the child as his own to others.

For two individuals living together as a married couple with a child born during their marriage, meeting the requirements of Texas Family Code 160.607(b) can make overcoming this limitation challenging.

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 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 a dad.

This was generally because the non-biological father had bonded with the child and wanted to continue in their role as a 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

Married but Pregnant by Another Man: Adultery Laws in Texas

To be married but pregnant by another man is a difficult situation considering the laws in Texas. The extramarital child may be relevant as to fault grounds and the division of property in a divorce in Texas.

Texas’s “no-fault” divorce statutes permit the dissolution of a marriage without requiring allegations and proof of fault.

This means the court doesn’t need to decide which spouse was the source problem for the failure of the marriage. In a “no-fault” Texas divorce, the marriage dissolves because it becomes “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.” It’s not a 50/50 split as some people think.

In Texas, the legal system considers adultery as 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.

Also, in Texas, adultery takes the literal definition in that sexual intercourse must have taken place.

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

In these scenarios, the complicating factor of an extramarital child can turn an easy divorce into a legal maze. It will take a good Houston Divorce lawyer to help you navigate.

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  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
  11. What happens if a court order paternity test shows you are the father of the child?
  12. Resolving Child Support Disputes without going to court: A how-to guide for Texas parents
  13. Pregnancy and Divorce: Can the two mix in Texas?
  14. The termination of parental rights in Texas What you need to know before going to court
  15. What rights does a father have in Texas?
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