Presumed Father – My Wife Got Pregnant During Our Divorce

Having a child with your spouse is a joyous time.  Raising your child, watching him grow, and teaching him new skills are some of life’s greatest treasures.  Unfortunately, not all marriages last forever, despite your growing family.  Divorces are not usually a quick or straightforward process, and your wife may have already moved on to a new paramour before the divorce is final.  If your wife gets pregnant before your divorce is over, you need to understand how paternity presumptions will impact you.

Marriage and Presumption of Paternity

New Jersey law specifically provides that a husband is automatically presumed to be the father of any child born to his wife during the marriage.  Moreover, any child born within 300 days of your divorce will likewise be presumed to be yours.  Unlike when a child is born to an unmarried woman, no extra steps must be taken for the law to presume that you are the child’s father if the child is born to your wife.

What is a Presumption?

A “legal presumption” means that the judge will presume a particular fact is true unless and until proof to the contrary is introduced.  In this context, it means that the judge will presume that you are the father of your wife’s child until you can produce proof that you are not the child’s father.  The reason for this presumption is that it would be inefficient and not particularly logical to force happily married couples to always provide proof that a child born during their marriage is indeed the child of both parents.

Countering the Presumption With Genetic Testing

The simplest way to prove you are not a child’s father is to request genetic testing.  Although you can purchase at-home genetic tests, you will need to have a DNA test done at a lab for it to be properly admissible in court.  If the mother will not voluntarily submit to genetic testing, you can ask that the court enter an order requiring her to produce the child.  You and the mother will not necessarily have to be at the same lab at the same time to complete the test; you can both individually coordinate the required appointments.

Countering the Presumption Without Genetic Testing

If you and your wife both agree that the child is not yours, it is not necessary to file a request for her to produce the child for a genetic test.  Instead, you, the mother, and the biological father can take the following steps to counter the presumption: 1) the biological father and your wife both sign a Certificate of Parentage stating they both believe the child is the biological father’s; 2) you and your wife sign a Denial of Parentage that acknowledges you are not the child’s biological father; and 3) both forms are then filed with the state Registrar.

Consequences for Failure to Rebut the Presumption

If you do not take steps to rebut the presumption that you are the father of your wife’s child, the court will treat the matter just like any other custody case.  In other words, the court will enter an order providing for custody, parenting time, and child support.  You could end up being ordered to pay child support for a child you know is not yours.  If you discover after the divorce is over that the child is not yours, you can still bring an action to disestablish paternity.  You have until the child turns twenty-three to file such an action.

Procedural Issues

Obviously, if you believe your wife’s child is not yours, you can file an action to challenge paternity.  However, the biological father or your wife are also able to file this type of action.  Whoever brings the action in court will need to produce “clear and convincing” evidence that the child is not the husband’s.  This standard is higher than the standard of proof required in most other civil cases.  Genetic testing done by a lab is generally the best way to meet this standard.

If you have questions about paternity, contact us today at (908) 738-8512.  We have extensive experience helping our clients understand their rights and responsibilities.

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