Pregnancy and Legal Parentage Issues
A divorce can be filed even if a spouse is pregnant although it may end up not be finalized until the pregnancy has ended. Currently, three states—Arkansas, Missouri and Texas—prohibit a divorce from being finalized while a spouse is pregnant. Even in states that do not, it is possible that disputes over custody, parenting time, child support and parentage (ex. paternity) could keep the divorce from being granted until after the birth.
Most states have a marital presumption (formerly known as a presumption of paternity), which means the person to whom the biological mother is married at the time of birth is considered a legal parent of the child. In some jurisdictions, they must be married as early as conception. In others, the law considers the other spouse to be the parent of any child born during the marriage or within 300 days after it ends. If someone other than a spouse is or could be the other biological parent, the court will want to establish paternity or at least establish whether the husband is the biological father. Some judges may accept the other biological parent's signature on the birth certificate along with the paternity affidavit or paternity acknowledgment form used in your state. If not, DNA testing will probably be ordered.
While the marital presumption is generally interpreted to apply to all marriages, regardless of the genders of the parties, a non-biological, non-adoptive spouse can obtain a court order establishing their legal parentage, such as through a legal adoption.
As a practical matter, the definition and application of the marital presumption depends of the jurisdiction so it is wise to consult with a family law attorney if you have any questions about a spouse's rights and responsibilities with regard to any minor children.
