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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).

Related: 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.

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