How to File for a Divorce With an Unborn Child in Texas

By Beverly Bird - Updated July 16, 2018
Newborn baby is held by the hand parent

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There are no rules under Texas divorce law baring someone from filing for divorce while the wife is pregnant, but judges will rarely grant the divorce until after the child is born. That isn't due to moral beliefs looking down on a man divorcing a pregnant wife, but the simple reality that a court can’t grant you a divorce without addressing issues of child support, custody and -- in some cases -- paternity. A lot must happen between the time of filing for divorce and obtaining your final decree, and if your divorce is contested, it could take far more than nine months to legally end your marriage.

Tip

Generally, the only way you can get a finalized divorce while pregnant in Texas is if it is uncontested and you already worked out issues of child support and custody.

Texas Divorce Law Process

Whether your baby is already born or on the way, the Texas divorce process begins the same way. You must file an Original Petition for Divorce and serve a copy on your spouse by arranging to have it personally delivered to him. If he wants the divorce too, he can sign a waiver of service that you can file with the court instead. He has until the first Monday after 20 days have passed to file an answer to your petition, unless you asked for a restraining order at the time you filed. You might do this if you fear that he’s going to sell or hide valuable assets or if your divorce is particularly hostile. If you ask for a temporary restraining order, the court will schedule a hearing within 14 days instead. The judge will decide at that time if it should be made into a more permanent injunction.

Contesting a Divorce

What happens next depends on whether your divorce is contested or uncontested. If your spouse contests the divorce, you’ll probably begin preparing for trial, particularly if either of you have hired an attorney. Trial preparation involves exchanging information and documentation about financial issues, and Texas law requires that you attend mediation to try to work out a settlement before you go to trial. This can eat up several months, so depending on how far along you are in your pregnancy, your child may well be born before trial of a contested divorce.

Uncontested Divorce in Texas

If you and your spouse agree to divorce, and if you can reach a mutual settlement, you can submit your signed agreement to the court for a judge to sign off on it and divorce you. Texas has a 60-day waiting period unless domestic violence is an issue, so this will still take at least two months from the date you file your petition. If this date arrives before your baby is born, consult with an attorney. The court’s main concern is that your decree must provide for your child. If you’ve already resolved issues of custody and support between you, it’s possible that the judge will sign your agreement as soon as the waiting period is over, even if your baby’s not born yet. But you may need the help of an attorney to convince him.

Paternity May Be Disputed

Texas law presumes that if your child is born before your divorce is final -- or even within 301 days after the date of your divorce -- your spouse is your child’s father. If he wants to contend that his wife is married but pregnant by another man, laws state that he can dispute paternity as part of your divorce proceedings. In legal terms, he can “join” a petition to establish paternity, called “adjudicating parentage,” with your divorce case. This would almost certainly involve a hearing, and if he can present sufficient evidence to suggest that he’s not your baby’s father, the court will order DNA testing to get to the bottom of the situation. Your divorce can’t be finalized until paternity is established, even if the waiting period has passed.

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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