Can a Married Woman Get a Divorce if She's Pregnant by Another Man?

By Travis Gray, J.D.

Can a Married Woman Get a Divorce if She's Pregnant by Another Man?

By Travis Gray, J.D.

Whether born or unborn, your children are a major factor in a divorce proceeding. But if you are seeking a divorce while pregnant and someone other than your husband is the biological father, you may have to go through some additional steps to finalize your divorce. And while there is plenty to consider before you file for divorce, in some states the court will not allow divorce proceedings to continue until after paternity is established.

Pregnant woman sitting on a couch talking on her cellphone with a concerned expression

Presumption of Fatherhood

In nearly every state, there is a presumption that your husband is the father of any baby conceived during marriage. This presumption is designed to cut down on the number of conflicts regarding custody and child support that could arise long after the child is born.

It is important to note that this is merely a presumption and is not set in stone. And like every other presumption, it can be rebutted in some situations.

Challenging the Presumption

The presumption that a child born during the course of your marriage is not your husband's biological child can be challenged in a few ways. First, you can challenge the presumption if you admit that your husband is not the child's father. Additionally, if your husband believes he may not be the biological father, he can also challenge paternity. In either case, the issue of paternity can be raised during your divorce proceeding. And while you can't determine the biological father of your child during pregnancy, some states require you to raise the issue in your divorce even if the child has not yet been born. In fact, some states will block you from ever raising the issue of paternity in the future if you fail to address it during your divorce prior to the baby's birth.

In other states, the issue of paternity won't be taken up until after the baby is born to allow for the necessary genetic testing. But it's important not to wait too long before challenging paternity. In many cases, there is a time limit on challenging the presumption. For example, Texas law prevents a father from challenging the presumption of his paternity once four years pass from the date of the child's birth.

Pregnancy Interfering with Divorce

The laws regarding pregnancy and divorce vary from state to state. While it is never a crime to divorce a pregnant spouse, the law varies on whether you can obtain a divorce during a pregnancy. In some states, including Louisiana, pregnancy will not interfere with divorce proceedings.

In other states like Texas, however, the courts will typically halt any divorce proceedings until after the baby is born. Most Texas judges will refuse to issue a divorce decree during the pregnancy, even when the husband is not the biological father. Even if another man steps forward to accept responsibility as the biological father, the judge will not allow the divorce case to move forward until after the baby is born and paternity is established.

Whether your pregnancy can interfere with your divorce depends entirely on the laws of the state you in which you file for divorce. Either way, you will still need to address establishing paternity if someone other than your spouse is the father of your child.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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