Getting a Divorce in Texas with a Pregnant Spouse

If you find yourself navigating a divorce while pregnant in Texas, you’re likely grappling with a multitude of questions and emotions. Not only are you contending with the complexities of ending a marriage, but you’re also anticipating the arrival of a new addition to your family. What can you expect from the divorce process while pregnant in Texas? How will the pregnancy factor into legal proceedings? These are valid concerns that require answers. In today’s blog post from the Law Office of Bryan Fagan, we delve into the intricacies of divorce while pregnant in Texas and explore related topics to provide clarity and guidance during this challenging time.

Can you get a divorce when one spouse is pregnant?

Let’s begin by addressing a crucial question: Can you get a divorce divorce while pregnant in Texas? The distinction between divorces with and without children is substantial. If you and your spouse are childless, except for a pregnancy in progress, your case’s negotiation and final orders will differ significantly.

In opposite-sex marriages, the completion of your divorce must wait until the child is born. While you can file for divorce, engage in negotiations, and have final orders prepared, the judge cannot formally approve the divorce until after the child’s birth. As a result, when one spouse is pregnant, they waive the typical 60-day waiting period for finalization.

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.

Conversely, if you are not the child’s biological father, you must establish the child’s paternity before finalizing the divorce. It’s important to note that you cannot establish paternity during a Texas divorce until after the child is born.

In a same-sex marriage with an ongoing pregnancy during a divorce, there’s no definitive answer I can provide. If you’re in that situation, consider consulting an attorney at the Law Office of Bryan Fagan. 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 while you or your spouse is pregnant in Texas?

The key point is that pregnancy can cause substantial delays in the divorce process. It’s possible to finalize divorces in as little as sixty-one days. However, they often extend due to complex negotiations and scheduling court dates accommodating both parties for hearings or a trial. Divorces can be time-consuming, even when both parties agree on all issues. Introducing complex factors, such as those in cases involving pregnancy and divorce, almost certainly extends the duration of the case.

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

Not at all. File for divorce whenever you feel the time is right. Go ahead, no matter if you are one month pregnant or eight months. Starting the process while you or your spouse is pregnant is a wise decision. 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 already complicated, even before pregnancy became a factor, you may welcome the opportunity to settle temporary orders. 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 give you confidence that you will pay bills and your spouse will not bother you.

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

Paternity is legally being able to identify a child’s father. Establishing paternity makes the child’s biological father the child’s legal father, granting him all legal rights and duties of a parent. The law automatically considers a man married to a woman who has given birth as the legal father of the child. Men can voluntarily acknowledge paternity or a court order can legally establish them as the father of a child.

If you are married to a woman who has given birth to a child that is not biologically yours, what happens? If this situation affects you, it’s important to understand that the State of Texas can establish paternity in two ways.

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. After you sign it, this legal document will be filed with the Department of Vital Statistics in Austin. You would state within that document that you are not the child’s biological father. Keep in mind that your marriage to the mother at the time of the child’s birth presumes you as the child’s father.

Once you sign and file both the Acknowledgment of Paternity and the Denial of Paternity with the appropriate state agency, the other man will legally become the child’s father, and your rights and duties to the child will be canceled. You will have no legal relationship, rights or duties to that child moving forward.

Remember that you can file the Acknowledgment of Paternity and Denial of Paternity separately with the Department of Vital Statistics, but neither becomes valid until you complete and file both appropriately. It takes two to tango.

Option number two for establishing paternity

The second option for establishing paternity in Texas involves you, your wife (the child’s mother), the child’s biological father, and the Office of the Attorney General filing a lawsuit to seek a paternity order from a judge. In this scenario, a judge will order genetic testing. When you sign the paternity order, the child’s biological father will take on the role of the child’s legal father, and your parental rights will be terminated. A paternity order can include orders regarding custody, visitation, child support and/or medical support if that is what the parents want.

You can complete either form we discussed today, the Acknowledgment of Paternity or the Denial of Paternity, at the hospital when the child is born. Hospital staff will collect the paperwork from you and then submit it to the Texas Vital Statistics Unit. Child support offices under the Texas Attorney General can often be located in strip malls and other retail outlet centers in many areas. 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 disagrees on their “roles” or requests genetic testing, it can also become quite contentious. 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 receive a disproportionate share of your community estate (more than 50%) or gain additional post-divorce time with your children.

For most individuals undergoing divorce, establishing adultery can pose a challenge, but in a case where your spouse is pregnant with another man’s child, someone has already done the groundwork for you. Your next course of action should involve collaborating with an experienced family law attorney who can negotiate on your behalf even before appearing before 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.


Navigating a divorce while pregnant in Texas presents unique challenges and considerations that demand careful attention and guidance. From understanding the implications of pregnancy on divorce proceedings to addressing the emotional and practical aspects of transitioning into parenthood amidst marital dissolution, individuals facing this situation require comprehensive support and legal expertise. By seeking counsel from knowledgeable professionals and staying informed about their rights and options, couples can navigate the complexities of divorce while pregnant in Texas with greater confidence and clarity, ultimately paving the way for a smoother transition into the next chapter of their lives.

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.


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