Divorce When a Spouse is Pregnant

If you are married and one spouse gets pregnant, you must wait until after the child is born to finish your divorce.

• If the husband is the child’s genetic father, then orders for custody and support of the child must be included in the Final Decree of Divorce. The judge cannot make those orders until after the child is born.
• If the husband is not the child’s genetic father, then paternity of the child must be established before you can finish your divorce. Paternity cannot be established until the child is born.

Note: If you have a same-sex marriage between two women, talk with a lawyer familiar with LGBTQIA+ family issues if either spouse is pregnant. The law in this area is unsettled.

Several laws work together to make it very difficult to finalize a divorce while one spouse is pregnant.

First, when you file for divorce in Texas, you must state in the divorce petition whether either spouse is pregnant. And, if a child is born during the marriage, the divorce must also include orders for custody and child support. Texas Family Code 6.406.

Additionally, if a court order for custody and support is already pending when the divorce is filed, the cases must be combined. Texas Family Code 6.407. Read Combining SAPCR and Divorce Cases and Transferring A Family Law Case to Another Court.

Finally, Texas law presumes that a man is the father of a child if he is married to the child’s mother when the child is born. Texas Family Code 160.204. This presumption applies even if it is biologically impossible for the husband to be the father. For example, if the spouses were separated and living far apart but never legally divorced, any child the wife has with another partner would still be presumed to be the husband’s. Read Divorce When the Husband Is Not the Father.

If one of the spouses gets pregnant while the divorce is pending, the petition will need to be amended. The original petition includes a section addressing pregnancy:

And when you finalize a divorce, you testify under oath about the pregnancy, too.

Because the court must make orders about the child whenever it finalizes a divorce, it is necessary to put the court and other spouse on notice about the pregnancy.

The divorce petition would have to be amended again after the child is born.

Paternity is the legal identification of a child’s father. When paternity is established, the child’s genetic father becomes the child’s legal father with all of the rights and duties of a parent. Paternity can be established by legal presumption (when the parents are married), by voluntary acknowledgment, or by court order.

There are two ways to establish paternity when the husband is not the genetic father.

• Acknowledgment of Paternity and Denial of Paternity

• Suit to Establish Paternity