Divorce During Pregnancy

Filing for Divorce While Pregnant

To obtain a divorce during pregnancy in Texas, the person must meet the same requirements as those filing for divorce under normal circumstances. In Texas, either the person initiating the divorce or their spouse must be a resident of Texas for at least six months prior to filing, as well as a resident of the county where the Petition is filed for at least 90 days. The divorce proceedings commence with the filing of a Petition for Divorce, where the party requesting the divorce is required to specify whether the wife is pregnant and, if so, whether the husband is the father.

However, even though there are no legal restrictions against it, Texas courts are unlikely to grant a divorce while the wife is still pregnant. Instead, they wait until the child is born, which takes at least 60 days from the date the Petition was filed, to address matters such as custody and support in the divorce decree.

Establishing Paternity for Divorce While Pregnant

A significant issue that arises in divorces filed while the wife is pregnant is the paternity of the unborn child. In Texas, a man is assumed to be a child's father if he is married to the child's mother and the child is born while the couple is married, or before the 301st day after the marriage ends. However, this presumption is rebuttable.

If either party questions the husband's paternity of the unborn child, they can ask the court to decide the child's paternity. The court will consider genetic testing to establish or disprove the presumption that the husband is the father or to determine if another man is the father. However, paternity typically cannot be determined until the child is born and genetic testing is conducted.

Furthermore, the presumption of paternity can be rebutted if the husband denies paternity while another man acknowledges paternity, which is equivalent to an adjudication and releases the husband from any parental duties or rights.

Child Support and Custody

In the event that neither party contests the husband's paternity of the child, the court will hold off on making decisions regarding custody and child support until after the child is born. Texas law presumes that the best interests of the child are served when the parents are joint managing conservators, which means that they both have the ability to make decisions about the child's care and upbringing. Additionally, courts usually grant both parents possession and access, which refers to visitation rights in Texas. In several instances, the court may order one parent to pay the other parent child support.