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Texas divorces sometimes have to wait for the baby

On Behalf of | Apr 1, 2020 | Divorce |

You might have heard a story that you cannot get a divorce while pregnant in Texas. At first, it sounds like one of those funny laws that someone says exists somewhere, but they usually cannot remember where.

It is true that, in Texas, there can be some truth to the story. Pregnancy can complicate the divorce process, and in many cases, the couple has to wait until after the birth to finalize the terms of their divorce.

Unless someone speaks up, the husband is always the dad

According to Texas law, a newborn baby’s father is the husband of the mother. If mom is married to a man, he is the dad. But this is only by “presumption,” meaning Texas considers no other options until someone asks it to.

No matter what anyone thinks now, father, mother and/or boyfriend might change their mind when a real baby joins the family. For example, the husband may deny the baby is his and refuses to pay child support.

Divorce courts like to play it safe

It makes sense that family courts do not like leaving loose ends hanging when they close the books on a divorce case.

Even in a no-fault divorce, when a couple is so dissatisfied with their marriage that they are legally divorcing, it may be unreasonable for a court to wonder if the wife has already moved on, romantically speaking.

So, before the birth, the couple, their attorneys and the court might decide to do virtually all the work involved in settling the divorce. That can include plans for dividing the property, assets and debts between the spouses, how the custody and visitation will go, and the like. All that may remain are the signatures.

When the baby arrives, the court may order a paternity test or, if it prefers, ask the spouses if they are both satisfied with the family resemblance, and so on. Then everyone can sign on all the dotted lines.

Chaos breaks out often enough

Love is complicated, of course, and a lot of other scenarios often play out.

Texas allows both fault and no-fault divorces. From the start, the husband might file for divorce on the grounds of the wife’s adultery.

Or, even if both husband and wife agree to the “husband-is-father” presumption in a no-fault divorce, another man can show up and insist he is responsible for the pregnancy. Judges do not want their cases on daytime TV.

Or maybe when the judge asks the wife if her baby is her husband’s, she simply might pause just a little too long before answering.

So, it is a myth that it is illegal for a pregnant woman to divorce in Texas. But pregnancy is likely to put the divorce on hold until some time after the birth. It is also true that everyone is probably wise to have legal representation during a divorce involving a pregnancy.