Paternity refers to establishing a child’s legal father. When a woman
is married, the law automatically presumes that her husband is the child’s
biological and legal father. Legal fathers have full rights and responsibilities
toward their children. This means that they are obligated to financially
support their children and they have the right to seek custody and visitation
from the family courts.
When a child’s biological father is not married to the mother, he
has zero rights and responsibilities toward his child unless paternity
is legally established by one of these two routes: 1) signing the
Acknowledgement of Paternity form at the hospital, or 2) through genetic testing.
Divorce Can Complicate Paternity Actions
We’d like to say that paternity is black and white but in the context of a
divorce, it can be more complicated. That said, here are two key issues to be
aware of if you are getting a no-fault divorce in the near future:
For women getting a divorce: During a divorce, it is not uncommon for a woman to become pregnant by
a man who is not her husband. This typically happens during the one-year
separation period. However, since the woman is still legally married,
the law presumes that her husband is the child’s legal father.
When the child is born, and depending if the divorce is final, either the
mother, the woman’s husband or former husband, or the alleged biological
father can ask the court for a DNA test to determine who the child’s
biological and legal father is. Once paternity is confirmed, the child’s
biological and legal father will be liable for
child support and can ask the court for custody and visitation orders.
For men getting a divorce: Sometimes, a married man will be separated from his wife, waiting for the
one-year to pass so he can file for divorce. In the meantime, he may impregnate
another woman, not his wife. In this case, he can either sign the
Acknowledgement of Paternity form at the hospital after the child’s birth. Or, if he’s not
sure he’s the child’s father, he can ask the court for a paternity
test (DNA test).
Can I Date My Spouse During Our Divorce?
If you are getting a divorce, it’s important to be aware of the issues
surrounding paternity, especially if you start dating before or during
your separation. Once your divorce is final, you won’t have to worry
about the divorce complicating things.