Should a Divorce be Refiled on Fault Grounds if the Wife is Now Pregnant by Another Man?

Full Question:

My son and his wife were in the process of filing a no-fault/uncontested divorce petition when his wife confessed that she is pregnant with another man's child. Can they continue with a no-fault divorce or should my son now file for divorce on the grounds of adultery in order to protect his rights should the child turn out, in fact, to be his?
10/06/2009   |   Category: Divorce   |   State: Tennessee   |   #18957


The court may need to grant permission for the divorce to be dismissed and refiled, or to have the complaint amended. A fault ground for a divorce may be a factor considered in granting alimony or property division. A child born while a woman is married or within 300 days of a divorce is presumed to be the husband's. It may be necessary to file a paternity action to determine who is the biological father in order to determine who has the rights of visitation and custody, as well as obligation of support. I suggest consulting a local attorney who can review all the facts and documents involved.

In most states, a paternity action takes the form of a civil lawsuit. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child. In many states, after a child reaches the "age of majority," he has another one to five years to seek the establishment of paternity.

A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future.A man is presumed to be the father if he has been married to the mother for a certain time before the child is born. That presumption may be rebutted by clear and convincing standards of evidence, such as a DNA test. A man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father. If a biological father is determined to be a man not married to the mother, that man may be ordered to have visitation rights, as well as other obligations.

Once paternity has been established, a father has the right to seek custody of or visitation with his child. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. A custody agreement between the parents or a court order can clarify custody and visitation issues. Unmarried parents without custody are entitled to the same visitation rights as divorced parents, absent extraordinary factors such as abuse or domestic violence.