It happens every so often, that a woman going through a divorce will get pregnant. This is particularly important because it raises the following issues; (1) Will the court allow the divorce to be completed while the woman is pregnant? (2) Is there a legal presumption that the husband is the father? (3) What happens if another man, other than the husband is the father? (4) If the parties are separated, at birth, does the husband have a right to be in the birthing room? (5) Does the wife have to share information about her medical health concerning the pregnancy with her husband? (6) If the husband is not the father of the child, what must the court do to make a finding as part of the divorce that the presumption is overcome as to the husband being the biological father?
Let’s start with filing the petition for divorce. It is required under Wisconsin law to state in the petition for divorce itself, whether the woman is pregnant or not.
sec. 767.215 Initiating action; petition and response (2) PETITION CONTENT. “Except as otherwise provided, in an action affecting the family, the petition shall state:
(b) The name and birthdate of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.” (emphasis added).
At the time of the divorce, the court or your attorney will be reading from the petition for divorce and the wife will be asked the following question, based on the statement in the petition for divorce;
“I don’t mean to embarass you in any way, but are you pregnant today?”
There is a presumption that if a child is born during a marriage, the husband is the father.
891.39 Presumption as to whether a child is marital or non-marital; self-crimination; birth certificates. (1) (a) “Whenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting in such action or proceeding that the husband was not the father of the child shall have the burden of proving that assertion by a clear and satisfactory preponderance of the evidence. In all such actions or proceedings the husband and the wife are competent to testify as witnesses to the facts. The court or judge in such cases shall appoint a guardian ad litem to appear for and represent the child whose paternity is questioned. Results of a genetic test, as defined in sec. 767.001 (1m), showing that a man other than the husband is not excluded as the father of the child and that the statistical probability of the man’s parentage is 99.0% or higher constitute a clear and satisfactory preponderance of the evidence of the assertion under this paragraph, even if the husband is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).”
So, you are probably saying to yourself, I have no idea what any of this means. Can you explain it to me in non-legal terms?
If you are married and wind up pregnant at any time prior to the divorce being finalized, the court or judge is going to “stay” (hold open) the court proceedings and not allow the divorce to go through until after the baby is born. The party who is alleging that the husband is not the father of the child, has the burden of proving that in court by clear and convincing evidence. There is presumption that the husband is the father. The court must appoint a guardian ad litem (attorney) to advocate for the baby in the determination whether the husband is or is not the father. Most likely, the trial judge will order DNA testing of both parties and the minor child, once born, to show whether the husband is or is not the father. The court will not simply rely on the “good word” of the parties. If the DNA tests come back and exclude the husband as being the biological father, the divorce trial judge may take the case one step further and require the mother to file for paternity and determine who is the biological father, before completing the divorce case. In some other situations, the DNA tests may be enough for the divorce trial judge to move forward and make a finding that the child is not a product of the marriage and the presumption has been overcome in court. Most courts chose the former procedure, rather than simply determining that the husband is not the father, if borne out by DNA testing.
If in the middle of the divorce, there is a question of parentage, I am not sure there is any specific law that I can point to where the husband is entitled to the wife’s private medical information about her pregnancy or force himself into the birthing room, over the objections of the wife. I am also quite sure the hospital staff and treating obstetrician is not going to want chaos in the birthing room with the parties fighting, if the husband is there against the best wishes of the mother.
Years ago, when I was a much younger lawyer, I was doing one of my first divorce hearings. My client (the wife), had made no mention to me that she was pregnant. At the time of filing, she did not indicate she was pregnant. She only learned that she had become pregnant, shortly before the final court hearing and had forgotten to tell me. Further complicating the matter, since her and her husband had been physically separated for over 9 months, her husband was not the father of the child. During the court hearing, we began by asking her the standard questions from the petition for divorce. Eventually, we got to the question, “are you pregnant today?” Of course, I was expecting a “NO” answer, when she answered, “why, yes, I am. I just learned about it last week.” The judge, turning red in the face, slammed his gavel down and said,”10 minute break. Go out in the hallway and talk to your client please.”
When we went out into the hallway, per the judge’s instructions, I asked her “why didn’t you tell me you were pregnant before today?” Her response was, “because I didn’t think you would think this is important!” Well, now after reading my blog for today, I am sure she would agree it is extremely important and of course, she did not get divorced that day in court. Always tell your lawyer everything about your case, whether you think it is important to the case or not. Clearly, being pregnant during the divorce is an extremely important and vital issue that both the court and the lawyers, along with your spouse, need to know about!
If you have questions about divorce, custody, or being pregnant in the middle of the divorce, contact one of our experienced family lawyers at Karp & Iancu, S.C. today.
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Milwaukee, WI 53226
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