In Texas, parties must wait at least sixty days before they can finalize their divorce from the date they file the Original Petition for Divorce. However, if one of the parties is pregnant, Texas law requires them to wait until the baby is born before they can move forward with finalizing the divorce. This blog will discuss legal and practical considerations a party should consider if they are preparing for a divorce when one of the parties is pregnant.
Steps Parties Can Take in their Divorce While One Party is Pregnant in Texas
In Texas, spouses cannot finalize a divorce if the female is expecting a child. Although parties cannot finalize a divorce, they can still file for divorce if one of the parties is pregnant and begin the divorce process. Divorces typically take months or possibly even years to finalize. Therefore, parties can use the nine months the party is pregnant to make significant progress towards finalizing their divorce.
Although the parties cannot have a final order in their divorce, called a Final Decree of Divorce, the parties can still get Temporary Orders. Generally, divorces involve two main areas of contention: 1. Property issues and 2. Child issues.
Children’s issues have three main components:
- Conservatorship, often referred to as “custody;”
- 2. Possession and access, or better known as “visitation;” and
- Child support.
Temporary Orders address how the parties will deal with their property and children while the divorce is pending, such as who stays in the marital residence and the parties’ possession schedule of their children. You can read more about Temporary Orders _____________________.
In addition to Temporary Orders, the parties can begin the negotiation process and attend mediation while one of the parties is pregnant. Mediation is typically a step in divorces, especially contested divorces, where the parties disagree about something. At mediation, the parties attempt to address issues in the case and come to an agreement. If the parties attend mediation and come to an agreement, the parties can sign what is called a Mediated Settlement Agreement. The parties’ attorneys can then take that Mediated Settlement Agreement and draft a Final Decree of Divorce. The parties can file the Final Decree of Divorce after the child is born. By going this route, parties can use the time during the pregnancy to get most of the work done on the divorce.
Establishing Paternity: When the Husband is the Child’s Biological Father
When a female of a marriage is pregnant, one of the first things that must be determined is whether the male or husband is the father of the child. In cases where the husband is the child’s biological father, courts will require that conservatorship, possession and access, and child support for the child be addressed. A court must wait until the baby is born to have jurisdiction over the child. Parties cannot get divorced before a party gives birth because a court cannot order custody, visitation, and child support for an unborn child. Courts do not want to grant a divorce that will need to be reopened again just a couple of months later after a child is born.
Establishing Paternity: When the Husband is not the Child’s Biological Father
In instances when the husband is not the child’s biological father, the parties will need to take extra steps to establish the child’s biological father as the child’s legal parent. This process is referred to as “establishing paternity”. This additional step is needed in instances where the husband is not the child’s biological father because a husband is presumed to be a child’s legal parent under Texas law if the child is born during the marriage. Though the parties are in the middle of the divorce, they still are not officially divorced in the eyes of the law. In these instances, the child’s biological father is not automatically the child’s legal parent. When a husband is not the child’s biological father, the presumptive father and mother can establish the paternity of the child in three ways: 1. Signing an Acknowledgment of Paternity, referred to as an AOP; 2. By admission in open court or 3. By a DNA test.
A biological father must be added as a party to the divorce suit in addition to the wife and husband going through the divorce. The law requires the biological father to be named as a party in a divorce in order for the court to adjudicate the biological father’s parentage. The court cannot adjudicate a person’s parentage if they are not a party to the case. Therefore, the biological father will need to be served with the Petition for Divorce and kept up to date on the case, including hearings and trials.
Ways to Establish Paternity: Acknowledgment of Paternity and Court Order
When a child is born outside of marriage, the child’s mother and the child’s biological father can sign an Acknowledgment of Paternity in the hospital. An Acknowledgment of Paternity states that the biological father is in fact the child’s father even though the mother is legally married to someone else or that the parties are not married.
If a child is born during the marriage, but not to the husband of the marriage, the husband can also sign what is called a Denial of Paternity after the child’s birth that further states that he is not the child’s biological father. Parties can find and complete these documents at the hospital when they go in to give birth to the child. Both documents must be filed with the Texas Vital Statistics Unit to have legal effect. The hospital will ensure the filing of these documents, but it's always best to request a copy at the hospital. Once both documents are filed, the child’s biological father becomes the child’s presumptive legal parent and the husband’s legal parental rights and duties end. The Final Decree of Divorce should include language outlining the execution of an Acknowledgment of Paternity to further establish paternity of the child.
Another way to establish paternity is through court admission. This involves the child’s biological father, biological mother and the husband to testify in Court about the child’s parents. This is often the least expensive way to establish paternity if an Acknowledgement of Paternity is not available.
Courts may order genetic or DNA testing to determine the paternity of a child.
Once paternity is established, the parties’ Final Decree of Divorce should include language evidencing how paternity is established. Once the court establishes paternity, the child’s biological father will have all the rights and duties provided to parents under Texas law and the husband’s parental rights and duties will end. More than likely the parties Final Decree of Divorce will not contain provisions related to the child born outside of the marriage. A presumptive father and mother will have to obtain their own separate court order to establish conservatorship, possession and access, and child support.
Non-Legal Challenges to Getting a Divorce While Pregnant
In addition to legal considerations, parties must also weigh non-legal challenges when deciding whether to begin the divorce process while pregnant. At the end of the day, everyone needs to make the best decision for themselves. However, going through a divorce while pregnant can cause additional stress and anxiety during an already difficult time. Having a child and getting a divorce are two big life changes. Parties can struggle to emotionally and mentally cope with making two important life changes simultaneously. If you find yourself going through a divorce while pregnant or while your partner is pregnant, remember that it is important to take care of yourself both emotionally and mentally.
Going through a divorce is never easy and can be emotionally and mentally draining for all parties involved. Getting a divorce while pregnant can be even more complicated, especially if one of the parties is not the child’s biological parent. We recommend reaching out to an experienced family law attorney to assist you through the divorce process.