Can I Still Get a Divorce if My Wife Is Pregnant in Texas?
By Beverly Bird
Although divorce and pregnancy might seem like a contradiction in terms, the events do sometimes occur simultaneously. If you live in Texas and your wife is pregnant, the question isn't if you can get a divorce, but when. Texas courts are very reluctant to end your marriage when a baby is on the way.
Filing for Divorce
When you file for divorce, Texas wants to know if your wife is expecting a baby. The state's statutory petition for divorce asks if she's pregnant. If she is, the petition also asks you to clarify whether you're the father. If you're not, or you aren't sure, it can complicate your divorce a great deal. If your wife conceives after you've filed for divorce, speak with a lawyer to find out if you must amend your petition.
If you know you're the father of your wife's child, it will delay the proceedings, but it won't stop them. Texas courts will wait until the baby is born to grant your divorce. The state has a waiting period for divorce in any event, even when an unborn child isn't a factor. Texas won't grant a divorce until two months have passed from the date you file your petition, unless domestic violence is an issue. Therefore, if your wife's pregnancy is seven months along, waiting until the baby arrives shouldn't have much of an effect. If you've reached an agreement on all issues, including the new baby, your divorce is uncontested and you can finalize it 61 days later or as soon afterward as the baby is born. If your divorce is contested – you and your wife can't agree on all aspects of support, property division and custody – the new baby probably won't affect the situation much in this case either. A contested divorce typically lasts longer than the average pregnancy.
If you don't believe you're the baby's father, the situation becomes much more complex. You'll have to file additional documents with the court before you can get a divorce. You can sign and file a denial of paternity with the court, but it won't do much good unless the baby's biological father is also willing to sign an acknowledgment of paternity. If he won't do this, you'll have to force a paternity test. Typically, you must first ask the court to order the biological father to cooperate with the test. Then you'll have to ask the court to adjudicate parentage according to the results. You can do this as part of your divorce proceedings, and the court will address the issue of the child's father and name him in your final decree.
If you can’t get a divorce until after the baby is born, Texas law presumes you're the baby's father because you were married to your wife at the time of the birth. Therefore, even if the child isn't yours, you're obligated to pay child support unless and until you prove you're not the father. If you strongly believe you're not, and if your wife is insisting you are, you can petition the court during your divorce proceedings to order a paternity test to measure the genetic match between you and the baby. This might be an option if your wife won't say who the father is, but speak with a lawyer first to make sure it's appropriate in your case.
- TexasLawHelp.org: Original Petition for Divorce (PDF)
- HG.org: Texas Divorce Law
- Texas Divorce Guide: Can I Get a Divorce While I'm Pregnant?
- Menduni Martindill: Can I Get Divorced While I am Pregnant?
- Ramos Law Firm: I Had a Child While Married But My Husband is Not the Father
- The Law Office of Natalie Gregg: How Long Does it Take to Get Divorced in Texas?
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.