Most state laws presume that a baby conceived during a marriage is the child of the mother’s husband. The presumption is designed to prevent a requirement where every couple would have to prove who the child’s father is before the court could address issues like custody and child support. Because of this presumption, the court in your divorce case will likely presume your unborn baby is the child of your husband and will order custody and child support accordingly.
Challenging the Presumption
The fatherhood presumption can be challenged in court according to your state’s procedures. If you admit that your baby is not your husband’s or if he believes it is not his, one or both of you can raise this issue during the divorce proceeding. It can be documented during your divorce so that you can refer to it later if you need to modify the court’s custody or child support order once the baby is born. In some states, you must raise this during the divorce proceedings or you can’t ever raise it later. You or your husband may need to wait until the baby is born to actually challenge the presumption that he is the baby’s father since genetic testing may be required.
State laws vary on this topic. Texas is an exception to the general rule that pregnancy will not interfere with divorce. Most Texas courts will not finalize any divorce in which a woman is pregnant until after the baby is born, regardless of whether the husband is the child’s father. Even if your husband is not the biological father of your child and the biological father steps forward to accept paternity, a Texas court will likely wait until the baby is born to issue a divorce decree.
Washington law is exactly opposite of Texas’ procedures. In 2005, Washington’s Court of Appeals decided a case in which a pregnant woman was denied a divorce from an abusive husband because she was pregnant. The Court of Appeals determined that it was unconstitutional for a divorce to be denied solely because of a woman’s pregnancy. Washington law now states that a woman’s pregnancy cannot affect divorce proceedings or the dissolution of a domestic partnership.