Written by Avvo Staff

How to Get a Divorce When the Wife is Pregnant

If you or your spouse are pregnant and getting a divorce, there are additional divorce issues to consider. For example, some attorneys recommend waiting until after the child is born to begin the divorce, so that the mother is still on her husband’s insurance plan. Other attorneys believe it is best to divorce before the baby is born so the child is spared the difficulty of divorce.

Regardless of when you choose to begin the proceedings, getting divorced while you or your spouse is pregnant requires you to take several additional steps and to consider additional issues. These include establishing or disestablishing paternity, understanding the role of a guardian ad litem, and knowing the time constraints for each of these steps.

Establishing whether the husband is the child’s biological father

If a child is born during the marriage or within 300 days of the divorce’s conclusion, the husband is legally considered the father of the child.

After the dissolution of the marriage, the father has the same rights and responsibility towards the child as the mother does. Depending on the divorce decree, it is likely the father will be required to pay child support.

Ways to “disestablish paternity”

The court will assume that the husband is the biological father of the child until you have disestablished paternity. Disestablished paternity means you have received a court order saying that the husband is not legally the father of the child.

There are three ways to disestablish paternity:

  1. File for disestablishment of paternity along with the divorce papers. Just as with any divorce case involving children, it is highly recommended you have an attorney help you do this. This is a good option if the biological father is unknown or cannot be found. Paternity testing will be necessary.

  2. Sign an Acknowledgement of Paternity along with the husband, wife, and biological father of the child. This acknowledgment will be legally binding, and must be properly prepared. It will ask if paternity testing has been done, and ask which man is the father of the child, and which man is filing to be legally established as the father. You can find this form at your state's Division of Child Support or Community Service Office. Once the paternity is decided, it can only be challenged under special circumstances, and even then only for the first two years after the decision.

  3. Either biological parent files a Paternity Action. This asks the court to establish the biological father’s paternity and to come up with a child care plan, orders as to where the child will live, and a child support order. A Paternity Action must include the mother and all possible biological fathers of the child. If one or more possible fathers are out of the jurisdiction you are under, get legal advice about proceeding without them. The court may still be able to grant disestablishment to the husband, even if the biological father cannot be located.

Role of guardian ad litem

Once you have filed a paternity action, the court may present you with a guardian ad litem. A guardian ad litem (GAL) is a person meant to act in the interests of the child and investigate the child’s parentage.

The GAL may be someone you know, such as a friend, or it may be a professional guardian. After the investigation, the guardian tells the court what would be in the child’s best interests, and may help come up with a detailed parenting plan and residence plan.

The guardian may also decide if a disestablishment of paternity is in the child’s best interests. What this means is that even if the husband is not the biological father, the court, with the input of the GAL, can deny a disestablishment of paternity if they feel it is in the child’s best interests.

You may have the chance to choose your guardian if both you and your spouse agree on the same guardian. Neither spouse nor any potential father can act as a guardian ad litem. Any fees for hiring a professional GAL are to be paid by the parties involved.

A guardian ad litem is appointed if one of the following is true:

  1. The child is a party in the divorce.

  2. The court is concerned about the interests of the child being represented.

  3. It is important that the child be bound by the findings of the Paternity Action.

  4. The court denies genetic testing.

Time limits for establishing and disestablishing paternity

In a divorce with a pregnant wife, you are under a number of time constraints. Regardless of how you choose to establish or disestablish paternity, it will not be finalized until 60 days after the child is born.

This does not mean that your divorce has to wait for disestablishment of paternity. As of 2005, a judge cannot deny or delay a divorce because the wife is pregnant. If the child is born before the divorce is finalized, you must disestablish paternity quickly if you have not already begun the process.

You have two years to file and legalize it before the husband (or former husband) is legally recognized and responsible for the child. Otherwise, you have to prove that there is no way the child is his by presenting documents that support your claims.

You must prove that you did not live with the spouse at the time the child was conceived, you did not have intercourse with the spouse at the time of the conception, and that the husband never openly treated the child like his own.

Getting a divorce while the wife is pregnant is an extremely complicated and emotional issue. It is highly recommended to get counseling and legal advice, and to hire an attorney to help you resolve this as quickly as possible.

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