Divorce When the Husband Is Not the Father

By law, the husband is the presumed 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. Read Texas Family Code 160.204 for more information.

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.

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 main ways to establish paternity when the husband is not the genetic father.

• Acknowledgment of Paternity and Denial of Paternity

• Suit to Establish Paternity

It’s important to talk with a lawyer if the husband wants to be the child’s legal father but is not the genetic father, because there are several possible approaches.

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.

Review our guide I need a divorce. We have minor children. A final custody and support order is already in place. for more information.

If the wife had a child with another partner while the parties were separated, and the original divorce petition does not mention it, the petition will need to be amended.

The original petition does include a section addressing children not of the marriage:

And when you finalize a divorce, you testify under oath about the children, 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 nonmarital children born during the marriage.

Talk to a lawyer who practices family law–and knows LGBTQ+ family law–if either wife in a same-sex marriage between women gave birth to a child during the marriage. Also, read Same-Sex Parentage for more information.