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What to Expect When You’re Expecting (& Divorcing)

 

Can a married couple get divorced in Texas while the wife is pregnant?What to Expect When You're Expecting & Divorcing

It is highly unlikely.

Most Texas courts will not grant a divorce to a married couple if the wife is pregnant. Instead, the couple will have to wait until after the baby is born to finalize their divorce, oftentimes causing significant delays to the already lengthy divorce process. This is the case even if the husband and wife both want the divorce and are in agreement on all issues.

Generally, Texas courts prefer to wait until after the baby is born so that paternity can be addressed and the court can determine if appropriate child-related orders, such as child support, need to be included.

Therefore, if a couple files for divorce in Texas when the wife is 2 months pregnant, there would be a waiting period of approximately 7 months minimum, depending upon the pregnancy, before the court would consider finalizing the divorce. This is in addition to the 60-day rule set forth in Texas Family Code, Section 6.702, which states that in most cases, a suit for divorce in Texas must be on file for a minimum of 60 days before the court will consider granting the divorce.

Regardless of who the biological father actually is, under Texas law there is a Presumption of Paternity, codified in Section 160.204 of the Texas Family Code, that says if a woman becomes pregnant while she is married, then her husband is presumed to be the child’s father.

During a divorce proceeding, the court would have continuing jurisdiction over any child from the couple’s marriage and that child would be included in the final decree of divorce as a child of the marriage. That means the court would likely make orders regarding custody arrangements, possession of and access to the child, health insurance coverage, medical support, child support, and any paternity issues.

What if the husband is not the unborn child’s biological father?

The couple would still have to wait until the child is born to finalize their divorce.

While it is quite possible for a woman to become pregnant during the marriage with another man’s child, the presumption of paternity under Texas law would still apply. Under TFC, Section 160.631, the presumption can be rebutted with genetic testing results. However, the paternity test would not be conducted until after the baby is born. So once again, everything is on hold. If the husband claims that he is not the child’s father, but then refuses to submit to a paternity test, his claim will be disregarded.

Another way to rebut the presumption is for the presumed father to file a valid Denial of Paternity with the Texas Vital Statistics Unit, and for another man to file a valid Acknowledgment of Paternity with the Texas Vital Statistics Unit. According to TFC, Section 160.305, the filing of these two documents in conjunction with each other is “the equivalent of an adjudication of the nonpaternity of the presumed father and discharges the presumed father from all rights and duties of a parent.”

If there is any question as to paternity, it is important to take the time to look into any paternity issues before a final divorce judgement is rendered. For example, if the husband is not the child’s biological father, he would probably prefer not to be financially responsible for his wife’s child with another man, especially since child support would only be required of the husband for those children he biologically fathered.

Does this mean a couple must wait to start the divorce process until after the birth?

No, not at all.

There is nothing stopping a couple from FILING for divorce in Texas and getting the legal process started while the wife is pregnant. Since the couple will have to wait until after the birth to finalize the divorce anyway, this extra time could be used to negotiate the specifics of the divorce, attend mediation, or even to reach a settlement agreement.

In the event of a highly contentious divorce, temporary orders are key. Especially since the parties are facing an extended waiting period in marriage limbo due to the pregnancy. Temporary orders can provide guidance and a set of ground rules for the couple during the pendency of their divorce.

If you find yourself in a similar situation and are wondering whether you should hire an attorney, please do not hesitate to do so. These are complicated and delicate issues, and the sooner you speak to an attorney about your legal rights, the better you will be protected. The family law attorneys at McClure Law Group, PC would be glad to help you and your family navigate through this process.  Please call 214-692-8200 or visit us at mcclure-lawgroup.com to learn more.