And Baby Makes Four?

By February 12, 2013Divorce, Paternity

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Tuesday, February 12, 2013

A certain “celebrity” finds herself in a not-as-unusual-as-you-might-think situation – currently in the process of divorcing her husband and pregnant by her boyfriend-future-husband. Will this little wrinkle present any special problems in her divorce?

Actually, yes. In Missouri, one of the questions the court must ask before finalizing a divorce is whether the woman is pregnant. Why you ask? Well, if she is pregnant, Missouri law presumes that the husband is the father of the child, and will require a delay to handle the care and custody of the child after it is born (explained further momentarily). Section 210.822.1(1) of the Missouri Revised Statutes states that a man shall be presumed to be the natural father of a child born during the marriage or within 300 days after the date of dissolution. So, in the case of our “celebrity,” her estranged husband is the presumed father of her unborn child – even though he is in fact not the biological father. Confused yet?

In order for this “celebrity” divorce to reach some closure, either the husband must accept the presumption of his status as the unborn child’s father – which would entitle him to custodial rights but also obligate him to child support – or the husband must contest paternity. Because courts like to dispose of all issues in a dissolution at one time and not piecemeal, the husband (or our “celebrity” wife) may have to amend the petition for dissolution to include a count for paternity, which may concede the new boyfriend is the father or ask for DNA testing. After the birth of the baby, the court can finalize the divorce and assure that husband has no rights or obligations with regard to the new baby.

Why the delay? As we mentioned, courts like issuing one complete judgment, and custody rights and obligations only attach after the birth of a child – courts cannot grant visitation to a fetus or child in utero because they are speculative (the “celebrity” could miscarry for example).

While the story of this “celebrity” usually only interests tabloids and public curiosity, the issue of pregnancy after a husband and wife separate – or worse, one that occurs before the couple separate – creates tremendous confusion and potential legal disasters. For instance, if the actual father of the child has few resources and the current spouse has significant wealth, the mother might be inclined to declare the husband the natural father of her child. If the husband does not know about the extramarital behavior, he could find himself supporting a child not his own – and very little time after the divorce to subsequently challenge paternity.

The lesson to learn from this story? If you have any suspicion – no matter how remote – as to your status as a parent of a child born of your marriage, before you get divorced, be sure to raise the paternity issue in the divorce proceedings.

Parentage of children born of affairs poses delicate legal questions of great consequence. If you find yourself in this position and need advice, contact the Marks Law Firm, LLC – we can help.