Divorce When a Spouse is Pregnant

If you have an opposite-sex marriage, 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.

If you have a same-sex marriage between two women, it’s a good idea to talk with a lawyer familiar with LGBTQ+ family issues if either spouse is pregnant. The law in this area is unsettled.

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.

1. By Voluntary Acknowledgment and Denial of Paternity

If everyone agrees:

• The child’s genetic father and mother sign an Acknowledgment of Paternity (AOP) stating (under penalty of perjury) that the man is the child’s genetic father; and
• The husband (presumed father) signs a Denial of Paternity (DOP), stating (under penalty of perjury) that the husband is not the child’s genetic father.

When both the AOP and DOP are completed and filed with the Texas Vital Statistics Unit:

• The child’s genetic father becomes the child’s legal father with all the rights and duties of a parent, and
• The husband’s rights and duties as a parent are ended.

Note: The AOP and DOP can be on one form or different forms. They can be signed and filed at different times. But neither is valid until both are completed and filed with the Texas Vital Statistics Unit.

Read about Acknowledgment of Paternity and Denial of Paternity if you want more information.

2. By Court Order

The husband, the child’s mother, the child’s genetic father, or another authorized person or entity (such as the Office of the Attorney General, or OAG) can file a paternity case to ask for a paternity order. The judge will order genetic (DNA) testing (if needed) as part of the paternity case. Read Establishing Paternity in IV-D Court for more information on this process.

When the judge signs the paternity order (called an Order Adjudicating Parentage):

• The child’s genetic father becomes the child’s legal father with all the rights and duties of a parent, and
• The husband’s rights and duties as a parent are ended.

Note: The paternity order can include custody, visitation, child support, and medical and dental support orders (but it doesn’t have to).

The Acknowledgment of Paternity (AOP) and the Denial of Paternity (DOP) can be completed at the hospital when the child is born. The hospital will then file them with the Texas Vital Statistics Unit for you.

The AOP and DOP can also be completed before or after the child is born at a certified entity (such as a local birth registrar or child support office). Call 866-255-2006 or search online to find a certified entity near you. The certified entity will then file them with the Texas Vital Statistics Unit.

If you need assistance or you are parents who live out of state, you can get help completing an AOP or DOP over the phone by calling 866-255-2006 or submitting a request online.

Note: An AOP and DOP signed before the child is born take effect on the day the child is born.

Yes. You will need a certified copy of the completed AOP and DOP form for your divorce.

You can learn more through the Office of the Attorney General - Paternity Establishment website or call the OAG at 1-866-255-2006.

You can also read Acknowledgment of Paternity and Denial of Paternity.

You must file a paternity case to get a court order establishing paternity of a child. The husband, the child’s mother, the child’s genetic father, or another authorized person or entity (such as the OAG) can file a paternity case. If you want to file a paternity case yourself, TexasLawHelp's guide I need a paternity order contains answers to frequently asked questions, step-by-step instructions, and forms for a case.

Warning! Filing a paternity case is complicated (especially if it’s not agreed or you or the other side wants genetic testing). It may be better to open a case with the Office of the Attorney General (OAG) or hire a private lawyer.

For information about opening a case with the OAG, call 800-255-8014 or visit the OAG's website.

If you need advice or help from a lawyer and do not know where to find one:

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area.
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