Texas Divorce Attorney Blog
Courts will not generally grant a Texas divorce during the pregnancy of a spouse. Courts want to address all of the issues in the final divorce decree, including paternity, custody, and child support, and they cannot do that until the child is born.
Although courts are unlikely to grant the divorce during a pregnancy, that does not mean a spouse should wait until the child is born to file for divorce. Texas has a waiting period of 60 days, meaning courts cannot issue a final divorce decree until at least 60 days have passed since the case was filed, except in certain cases involving family violence. The paperwork can be filed and the process initiated during the pregnancy. The parties can go ahead and start negotiating the terms of the divorce and try to work out any issues on which they agree. If the parties do not agree on significant issues, the process could take several months and waiting until the child is born to file for divorce will just prolong these delays.
Texas family law has a presumption of paternity, meaning the husband is generally presumed to be the father of a child born during the marriage or within 300 days after the divorce; Texas Family Code §160.204. In some cases, however, the husband may not be the biological father of the child. If the husband is not actually the biological father, the presumption can be rebutted in two ways. First, the husband can file a valid denial of paternity in conjunction with someone else filing a valid acknowledgement of paternity to establish the other person is the child’s father. This method requires the husband, the mother, and the other man to all agree that the other man is the child’s father. Otherwise, the presumption may only be rebutted by an adjudication of paternity.
Unless an exception applies, a challenge to the paternity of a presumed father, by the father, the mother, or another individual, must be commenced by the child’s 4th birthday. This limitation does not apply if the couple did not live together or have sexual intercourse during the probable time of conception or if the presumed father was precluded from filing to adjudicate paternity before the time limit expired because he believed he was the biological father based on misrepresentations. If a court finds either of these conditions is present, it may allow the paternity proceeding at any time.
If the child is born during the marriage or within 300 days of the divorce, the husband will be recognized as the father with all of the associated rights and responsibilities unless a court orders otherwise or the husband files a valid denial and someone else files a valid acknowledgement of paternity. It is therefore important to address any paternity concerns prior to the divorce being finalized, or the court will address issues involving the child, including custody, visitation, and child support, under the presumption that the husband is the father.
Divorce is always a stressful process, and even more so when there is a child on the way. If you believe you are facing this situation, the skilled Texas divorce attorneys at McClure Law Group will help you through the process with kindness and sensitivity. Call us at 214.692.8200 to schedule a meeting.