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Divorce when the Wife is Pregnant

This article tells you about getting a divorce when the wife is pregnant.

Can I get divorced if the wife 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 female same-sex marriage, it’s a good idea to talk with a LGBT family law lawyer if either wife is pregnant. The law in this area is unsettled.

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

How is paternity established when the husband is not the genetic father?

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 or Denial of Paternity?

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.