Separated for years, now have a child with someone else and need a divorce.

[ArteYyv]

Texas
My husband and I separated in 2017 in the middle of April. I moved out, and then was under the impression that I had to wait 6 months to file after moving to a new state, which was Tennessee at the time. I had found a really amazing person to be with while I was waiting for this time requirement to do its thing and we found out I was pregnant beginning of October. We're super happy and our little boy is 7 months right now! Anyway, since I became pregnant pretty much right when I thought I could finally go ahead with the divorce, a lawyer in my family advised that I couldn't file for divorce while pregnant. Another time set-back, but okay, I thought. So now, I've been trying to ask around and see WHAT forms I need to fill out to start this process. I can do it all myself, as I had already done before being told I can't file while pregnant, and both parties are in agreement that the baby is not the husband's as I was nowhere near him, in fact I was out of the country at the time in Canada!
So how the hell do I proceed? Would I be able to file for uncontested divorce with no children, considering it's not the husbands and the biological father's name is even on the BC? Or do I have to open a pointless, time-wasting, money-costing case for a paternity test that both men know is clearly unnecessary? Really hoping for the former, but I can't seem to get a straight answer from anyone.
We'd both really like to get this divorce taken care of now so we can continue with our own lives, and he's pretty cooperative.

 

[LdiJ]

Texas
My husband and I separated in 2017 in the middle of April. I moved out, and then was under the impression that I had to wait 6 months to file after moving to a new state, which was Tennessee at the time. I had found a really amazing person to be with while I was waiting for this time requirement to do its thing and we found out I was pregnant beginning of October. We're super happy and our little boy is 7 months right now! Anyway, since I became pregnant pretty much right when I thought I could finally go ahead with the divorce, a lawyer in my family advised that I couldn't file for divorce while pregnant. Another time set-back, but okay, I thought. So now, I've been trying to ask around and see WHAT forms I need to fill out to start this process. I can do it all myself, as I had already done before being told I can't file while pregnant, and both parties are in agreement that the baby is not the husband's as I was nowhere near him, in fact I was out of the country at the time in Canada!
So how the hell do I proceed? Would I be able to file for uncontested divorce with no children, considering it's not the husbands and the biological father's name is even on the BC? Or do I have to open a pointless, time-wasting, money-costing case for a paternity test that both men know is clearly unnecessary? Really hoping for the former, but I can't seem to get a straight answer from anyone.
We'd both really like to get this divorce taken care of now so we can continue with our own lives, and he's pretty cooperative.

Its not quite as simple as you might think because you have a child that was born during the marriage, therefore you have to disestablish the husband's paternity. That means that you generally cannot use standard forms for a non-contested divorce. You have to acknowledge the child's existence as part of the divorce and acknowledge that the child is not the husband's child as well.

I all reality, you really need an attorney to handle the divorce to make sure that it all goes right. Otherwise you risk complications down the road.

It does appear that you were allowed to list the biological father on the birth certificate, so most of the issues regarding the child will be formalities, but its still not simple.

 

[ArteYyv]

Its not quite as simple as you might think because you have a child that was born during the marriage, therefore you have to disestablish the husband's paternity. That means that you generally cannot use standard forms for a non-contested divorce. You have to acknowledge the child's existence as part of the divorce and acknowledge that the child is not the husband's child as well.

I all reality, you really need an attorney to handle the divorce to make sure that it all goes right. Otherwise you risk complications down the road.

It does appear that you were allowed to list the biological father on the birth certificate, so most of the issues regarding the child will be formalities, but its still not simple.

Thanks for your reply! I was hoping to avoid attorney costs but I guess some things can't be helped. The situation does lean in that direction.

 

[justalayman]

I’m kind of curious how you listed the bio father as the father on the birth certificate. This is the law on that matter;

a)

A man is rebuttably presumed to be the father of a child if:

1) The man and the child's mother are married or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

Did you inform the hospital you were still married? If so they should not have placed the bio father’s name on the Bc.

Because the husband is presumed to be the father by law you do have to address that in your divorce.

 

[ArteYyv]

I’m kind of curious how you listed the bio father as the father on the birth certificate. This is the law on that matter;





Did you inform the hospital you were still married? If so they should not have placed the bio father’s name on the Bc.

Because the husband is presumed to be the father by law you do have to address that in your divorce.

His bio father is Canadian. I've been in Canada for the better half of this past year on an extended visitor visa. When it was time for us to fill out the birth certificate, they make you do it at home online. I was unaware at that time of that "presumed to be the father" thing until we got back to The States, and no one inquired or asked, not even the CBP.

 

[LdiJ]

His bio father is Canadian. I've been in Canada for the better half of this past year on an extended visitor visa. When it was time for us to fill out the birth certificate, they make you do it at home online. I was unaware at that time of that "presumed to be the father" thing until we got back to The States, and no one inquired or asked, not even the CBP.

So the child was born in Canada? If that is the case, then TX law would not have applied when the child was born. Therefore, unless the province in Canada had the same rebuttable presumption of paternity it would not have been inappropriate to list the actual father on the birth certificate.

 

[Ohiogal]

So the child was born in Canada? If that is the case, then TX law would not have applied when the child was born.

Really? Cite your source. Because she is divorcing in the United States

 

[justalayman]

So the child was born in Canada? If that is the case, then TX law would not have applied when the child was born. Therefore, unless the province in Canada had the same rebuttable presumption of paternity it would not have been inappropriate to list the actual father on the birth certificate.

I applied Tennessee law since that was the state of residence of the mother and presumably the state of the child’s birth.

 

[LdiJ]

I applied Tennessee law since that was the state of residence of the mother and presumably the state of the child’s birth.

Ah, I missed that. Although it does sound like the child was born in Canada. Perhaps the OP will come back and clarify.

 

[justalayman]

Ah, I missed that. Although it does sound like the child was born in Canada. Perhaps the OP will come back and clarify.

With her added info, I too am confused as to where the child was born.

 

[ArteYyv]

So the child was born in Canada? If that is the case, then TX law would not have applied when the child was born. Therefore, unless the province in Canada had the same rebuttable presumption of paternity it would not have been inappropriate to list the actual father on the birth certificate.

Okay, thanks! I'll some research on that. I have it listed on my passport as married and the actual husband's name is even on record when I applied for it, and both the hospital and CBP ran it in their system. Maybe that is the case, because it's the first time hearing this preumption law since coming back.
I appreciate the hell out of all the replies to this. It seems every time I try to ask a legal representative they won't even give me a yes or no unless I pay them. Understandable, I suppose, since that's their trade, but now I've at least got a better idea than before.

 

[ArteYyv]

With her added info, I too am confused as to where the child was born.

Sorry, yes! The child was born in Canada.

 

[not2cleverRed]

Good golly!

Yes, you will need the added expense of a lawyer. Atty costs are not a waste - they earn it, and with cases like yours, they earn ever penny.

Canada, Texas, and Tennessee - by the way, Canada hasn't been annexed by the USA yet, so depending on the circumstances, you might have just as much (legal) cause to file there.