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Getting a divorce in Texas when you (or your spouse is pregnant)

If you are facing down a divorce and are pregnant yourself or your spouse is pregnant, you likely have a lot of questions on your mind. Not only are you feeling a lot of emotions surrounding the pregnancy, but you are also having to keep your mind on the divorce. What will you experience in a divorce? How will the pregnancy affect the divorce proceedings? These are all valid questions. Today’s blog post from the Law Office of Bryan Fagan will seek to answer those questions and touch on other subjects that are related to them.

Can you get a divorce when one spouse is pregnant?

Here is the first question that we need to ask ourselves today. Before we start to get all hot and bothered about divorce while you or your spouse is pregnant, we need to consider whether or not it is even possible to get a divorce when someone is pregnant. The difference between a divorce with children and a divorce where there are no children is significant. Suppose that you and your spouse are childless- except that your wife is three months pregnant. The way your case is negotiated, as well as how the final orders look will vary significantly.

If yours is an opposite-sex marriage, then you have to wait until the child is born in order to complete your divorce. That means that a divorce can be filed, answered, negotiated upon and you can even have final orders drafted and ready to go. However, until the child is born your divorce cannot be formally approved by the judge. This means that the 60-day requirement for a divorce to be on file before it can be finalized is thrown out the window when you or your spouse is pregnant.

In this scenario, if you are the child’s biological father then there must be orders related to custody and support for that child contained in the Final Decree of Divorce. Because the child is not yet born, a judge cannot make those orders until the child is with us. Until then you and your spouse will have to wait for the divorce to conclude.

On the other hand, if you are not the child’s biological father then the paternity of the child has to be established until you can complete the divorce. Paternity is not something that can be established in a Texas divorce until after the child is born.

In a same-sex marriage between two women, there is no sure-fire answer for me to provide you within the event that pregnancy is ongoing during the course of a divorce case. If you find yourself in that type of situation, I would recommend that you speak to one of the attorneys with the Law Office of Bryan Fagan, so we can hear your circumstances and make recommendations for you based on the specific knowledge of your situation.

What does it mean to your divorce if you or your spouse is pregnant?

The bottom line is that significant delays can be associated with the pregnancy of one of the parties. Divorces can be completed in as little as sixty-one days, but often times take much longer due to lengthy negotiations on complicated issues and/or the inability to obtain court dates that suit both parties for hearings and/or a trial. Divorces can take a long time, even in the best of circumstances when both parties are in agreement on all issues. Add in complicated facts like those that occur in cases involving pregnancy and divorce, and that almost assuredly adds to the length of a case.

Does it make sense to wait to file for divorce until after the baby is born?

Not at all. Go ahead and file for divorce whenever you feel the time is right- no matter if you are one month pregnant or eight months. Getting the process started while you or your spouse is pregnant is not a bad idea, whatsoever. You have a built-in a waiting period in which you and your spouse can engage in negotiations on specific issues like the division of marital assets that can take a long time to work out.

If your divorce case was complicated even before introducing the topic of pregnancy, you may find that the ability to settle on temporary orders is a welcome event in your case. Temporary orders allow you to live under some court issued rules of engagement that will lead you into the time period where you negotiate for the final orders in your case. If you feel like a tightrope walker who has been performing without a net since your spouse left you or moved out of the home, having temporary orders in place can provide you with some confidence that bills will be paid and you will not be bothered by your spouse.

What does paternity mean and how is it established in Texas?

Paternity is legally being able to identify a child’s father. When paternity is established the child’s biological father becomes the child’s legal father and gains all of the legal rights and duties of a parent. It is presumed that if a man is married to a woman who gives birth to a child, that man is the legal father of the child. Men are also able to voluntarily acknowledge paternity of children or be established as the legal father of a child via a court order.

What happens if you are married to a woman who has just given birth to a child who is not your biological child? If this situation affects you then you need to know that there are two ways that the State of Texas can establish paternity.

Option number one for establishing paternity

The first is if the biological father voluntarily acknowledges that he is the father and you deny paternity. In this case, everyone would have to agree who the child’s biological father is. Your wife would then need to sign an Acknowledgment of Paternity that states the other man is the child’s genetic father.

The next step in this first option for establishing paternity is that you would then need to sign a Denial of Paternity. This is a legal document that will be filed with the Department of Vital Statistics in Austin after you sign it. You would state within that document that you are not the child’s biological father. Remember- it is presumed that you are the father of this child due to your being married to the mother when the child is born.

Once both the Acknowledgment of Paternity and the Denial of Paternity are signed and filed with the appropriate state agency the other man will become the legal father to the child and your rights and duties to that child are canceled out as a result. You will have no legal relationship, rights or duties to that child moving forward.

Keep in mind that the Acknowledgment of Paternity and Denial of Paternity can be filed at separate times with the Department of Vital Statistics but neither one is valid until both are completed and filed appropriately. It takes two to tango.

Option number two for establishing paternity

The second option that could be utilized in order to establish paternity of a child in Texas is if you, your wife (the child’s mother) and the child’s biological father along with the Office of the Attorney General, file a lawsuit in which a paternity order is sought from a judge. If this occurs a judge will order that genetic testing be completed.

When it comes for time for the paternity order to be signed the child’s biological father will become the child’s legal father and your parental rights are terminated. A paternity order can include orders regarding custody, visitation, child support and/or medical support if that is what the parents want.

Where can these legal forms be filled out?

Either form that we have discussed today, the Acknowledgment of Paternity or the Denial of Paternity can be completed at the hospital at the time of the birth of the child. The hospital will have staff whose job it is to collect the paperwork from you and then file it with the Texas Vital Statistics Unit. In many areas, child support offices through the Texas Attorney General can be found in strip malls and other retail outlet centers. These locations will accept the forms even before the birth of the child.

What happens if you need to obtain a court order that establishes paternity of your child?

If you are a mother who needs to have paternity established for your child, you will need to file a paternity case in order to obtain an order signed by a judge that establishes paternity for your him or her. You, the child’s biological father (if not your husband), your husband or the Office of the Attorney General (for child support purposes) can file a paternity case on behalf of your child.

It is worth noting at this point that filing a paternity case is tedious and extremely time-consuming. If either of the men involved in your case does not agree on their "roles" or are requesting that genetic testing is undertaken it can become quite contentious as well. Hiring your own attorney or contacting the Office of the Attorney General to initiate the filing of your case may be a very good idea depending on your particular circumstances.

Using adultery as an issue in your divorce case

As you might have guessed by reading the first sections of today’s blog post, adultery is a topic that is frequently a part of Texas divorces. In order to bring up adultery as a "fault ground" for divorce, you will need to do quite a bit of research into the past actions of your spouse. In the case of your wife having a child with another man the proof is the child, him or herself. No need for extensive research in this regard.

Adultery can have an impact on the division of property as well as in determining custody of your other children. If, for instance, you are also able to provide evidence that your spouse exposed your other children to the biological father to the child who is not yet born, that is likely something that the judge would take issue with. You may be able to be awarded a disproportionate share of your community estate (greater than 50%) or be provided with more time with your children after the divorce is finalized.

Adultery is something that can difficult to prove for most people going through a divorce, but the work has been done for you in a case where your spouse is pregnant with another man's baby. The next step that you should take is to work with an attorney who is experienced in family law and can negotiate on your behalf prior to even seeing a judge. If you can leverage the affair and resulting pregnancy effectively you may end up with a settlement that is distinct to your advantage.

Questions about family law and divorce? Contact the Law Office of Bryan Fagan

The issues and topics that we have discussed today demand that you hire an experienced family law attorney if any of them affect you and your marriage. Those attorneys with the Law Office of Bryan Fagan have worked on behalf of clients in positions just like you. People who want what is right for your family. To learn more about our office please contact us today.

Our licensed family law attorneys offer free of charge consultations six days a week here at our office. These consultations are a great opportunity to ask questions and receive feedback about your particular circumstances. Thank you for your interest in today’s blog post topic and we hope that you will join us tomorrow to discuss and learn about more important information about Texas family law cases that affect the people in our community.

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Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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Law Office of Bryan Fagan, PLLC | Spring, Texas Divorce Lawyers

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

Our divorce lawyers in Spring 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, 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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