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Can You Get a Divorce While Pregnant in Texas?

Sophia Merton
August 25, 2023

Divorcing a spouse is complicated enough on its own, but when you throw a pregnancy into the mix it can feel downright overwhelming. Can you get a divorce while pregnant in Texas, or do you have to wait to dissolve your marriage?

You cannot finalize a divorce in Texas while one spouse is pregnant in an opposite-sex marriage. Couples must wait for the baby to be born before a judge will sign the Divorce Decree. However, you can file for divorce and work to negotiate your agreement with your spouse while one of you is pregnant.

Let's take a look at what you need to know about pregnancy and divorce in Texas.

Can You Get a Divorce While Pregnant in Texas?

In Texas, a divorce cannot be finalized if one spouse is pregnant in an opposite-sex marriage. In a same-sex marriage between two women, the legality of finalizing a divorce while pregnant is unsettled. For this reason, it's important to talk with a lawyer who is familiar with this area of the law to determine how to proceed.

pregnant woman with stuffed animal and basket outside before texas divorce

Considering that you can't finalize a divorce while you're pregnant, it may have crossed your mind to keep your pregnancy hidden. Make sure you check out my recent article about lying about pregnancy during a Texas divorce before you make any final decisions.

Do Custody and Support Orders Need to Be in the Final Decree of Divorce?

If you are getting divorced from a spouse of the opposite sex, your divorce can't be finalized until the baby is born. Whether or not the Final Decree of Divorce has to include custody and support orders depends on the question of paternity.

Here are the two possible options depending on whether the husband is the father of the child:

  • If the husband is the biological father of the child, the Final Decree of Divorce must include custody and support orders. These orders cannot be made by a judge until the baby has been born.
  • If the husband isn't the biological father of the child, then the divorce can't be finalized until paternity is established. The baby must be born first before paternity can be established.

Interested to learn about how assets will be divided in your divorce? Check out our guides about who gets the house, who gets the kids, and who gets the car in a Texas divorce.

Can You File For Divorce While Pregnant?

Though you cannot finalize a divorce during pregnancy, that doesn't mean you can't begin the process of divorce by filing the initial paperwork.

woman looking at pregnancy test in texas before divorce

If you choose to file for divorce while one spouse is pregnant, you'll want to be prepared to wait. The child must first be born before the divorce can be finalized. On top of that, there is a mandatory sixty-day waiting period that couples must go through after filing. Depending on how far along into the pregnancy the woman is when the paperwork is initially filed, this could mean waiting even longer after the baby is born.

It's worth noting that there are some exceptions to the mandatory waiting period, but there are fairly strict rules surrounding who is exempt. According to Texas Law Help, a resource that is managed by the nonprofit Texas Legal Services Center, the only two exceptions to this rule are:

  1. "If your spouse has been convicted of or received deferred adjudication for family violence against you or a member of your household. 
  1. If you have an active protective or magistrate's order against your spouse because of family violence during the marriage."*

*Source: Texas Law Help

Why Won't a Judge Finalize a Divorce When One Spouse Is Pregnant?

Before a baby is born, there are certain questions that remain unanswered that could impact child custody and support orders. For example, it's possible that different custody arrangements and more financial support could be deemed necessary if the baby was born with serious health issues.

This doesn't mean that couples pursuing a divorce can't work to negotiate their agreement while the woman is pregnant. Of course, this is assuming that there aren't any questions about who the biological father is. If there is uncertainty or complexity surrounding the issue of paternity, there are additional issues that have to be addressed before divorce can be finalized.

Understanding Paternity in a Texas Divorce

Another factor that can complicate the process of getting divorced when there is a new baby on the way is the question of paternity.

Paternity is a term that refers to the legal recognition of the genetic father of a child. The child's biological father is legally considered the father of the child once paternity is established. Along with this legal designation comes all of the rights and duties of a parent.

There are three ways that paternity can be established. These are:

  1. By legal presumption (this occurs when two parties are married)
  2. By voluntary acknowledgment
  3. By court order

If the husband isn't the biological father of the child, the two methods of establishing paternity are voluntary acknowledgment and court order.

If your husband isn't the father of your child, you might be wondering if there are laws on the books about getting married again after finalizing a divorce. Make sure you check out my article about how long you have to wait after divorce to get remarried in Texas.

Establishing Paternity Through Voluntary Agreement

If all of the parties involved (husband, wife, and biological father of the child) agree as to who the father is, here is what must unfold:

  1. The biological mother and father of the child will sign an Acknowledgment of Paternity. On this form, they are claiming under penalty of perjury that the biological father of the child is the man signing the form.
  2. The husband signs a Denial of Paternity. On this form, he claims that he isn't the biological father of the child under penalty of perjury.

Two things occur once both of these forms have been filed with the Texas Vital Statistics Unit. These are:

  1. The rights and duties of a parent no longer apply to the husband.
  2. The rights and duties of a parent are extended to the biological father of the child, who becomes the legal father of the child.

Neither of these forms is considered valid until they have both been completed and filed. They must be filed with the Texas Vital Statistics Unit.

Establishing Paternity Through a Court Order

The other method of establishing paternity when the husband isn't the biological father is by court order.

In order to begin this process, one of the following parties must file a paternity case in order to ask for a paternity order:

  • The child's mother
  • The husband
  • The child's biological father
  • Another authorized person or entity (for example, the Office of the Attorney General)

If necessary, the judge will order DNA testing in order to determine who the father of the child is. At the point when a paternity order is signed by the judge (known as an Order Adjudication Parentage), the following occurs:

  • The biological father assumes all the rights and duties of a parent and becomes the legal father of the child
  • The husband no longer has any rights and duties as a parent to the child

It's worth noting that the paternity order can include other orders. These include:

  • Custody orders
  • Child support orders
  • Visitation orders
  • Medical and dental support orders

Though these orders can be included in the paternity order, they don't have to be.

Pregnancy and Divorce in Texas: Final Thoughts

Both divorce and pregnancy can be stressful, overwhelming experiences. Though you are able to begin the process of getting divorced in Texas while pregnant, the judge will not be able to sign the Final Decree of Divorce until the baby has been born. Things can become more complicated if there is a question about paternity, as paternity will need to be established before the Divorce Decree can be finalized.

Are you in the process of getting divorced in Texas? Make sure you check out our Texas Divorce Laws blog for more resources.

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Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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