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Divorce when the Husband is Not the Father

This article tells you about getting a divorce when the husband is not the father of a child born during the marriage.

What if the wife had a child with another man while married to the husband?

By law, the husband is the legal father of any child born to the wife during the marriage. This is true even if the husband and wife were separated when the child was born.

If the husband is not the genetic father of the child (and he does not want to be the legal father), paternity of the child must be established before you can finish your divorce.

Note: In some Texas counties, it’s better to establish paternity before you start your divorce.

What is paternity?

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 (the 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.

- OR -

(2)  By Court Order

The husband, the child’s mother, the child’s genetic father or other authorized person or entity (such as the Office of the Attorney General) 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.

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 support orders (but it doesn’t have to).

Where can we complete the Acknowledgment of Paternity and Denial of Paternity?

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

The AOP and/or 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 1-866-255-2006 to find a certified entity near you. The certified entity will then file the AOP and/or DOP with the Texas Vital Statistics Unit.

Parents who live out of state can get help completing an AOP or DOP over the phone by calling 1-866-255-2006.

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

Will I need a copy of the Acknowledgment and Denial of Paternity form for my divorce?

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

Where can I get more information about completing an Acknowledgment of Paternity or Denial of Paternity?

What if we already signed the Acknowledgment and Denial of Paternity forms?

You will need a certified copy of the completed AOP ad DOP form for your divorce. If you don’t have a certified copy, contact the Texas Vital Statistics Unit to get certified copies. You can use this form: Acknowledgment of Paternity (AOP) Inquiry Request Form. Instructions are on the form.

How can I get a court order establishing paternity of a child?

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 other authorized person or entity (such as the Office of the Attorney General) can file a paternity case. If you want to file a paternity case yourself, use this toolkit: I need a paternity order.

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.

What if there is already a court order about the child (such as a child support order)?

You will need a file-stamped copy of the order for your divorce. If you don’t have a copy of the order, contact the district clerk’s office in the Texas county where the order was made to get a copy.

If you have a copy, make sure it was signed by the judge. If your copy was not signed by the judge, you must get a new copy. Contact the district clerk’s office in the Texas county where the order was made to get a copy.

What if the husband wants to be the child’s legal father?

It’s important to talk with a lawyer if the husband wants to be the child’s legal father.

What if either wife in a same-sex marriage gave birth during the marriage?

It’s a good idea to talk with a LGBT family law lawyer if either wife in a female same-sex marriage gave birth to a child during the marriage.