Paternity Laws: Overcoming Putative Father Presumption

Paternity Laws Question:

My wife and I are getting divorced. She is pregnant with another man’s baby and will probably have the baby before our divorce is final.

What do I need to do to protect myself against having to pay child support for the child that is not biologically mine, but will likely be born while I am married to the child’s mother?

Do I have paternity rights in this case?

Answer:

While I am not licensed to practice law in Florida, I can provide you with a general response to your paternity laws question.

In many states, a husband is presumed to be the biological father of any child born during a marriage. If a wife is pregnant before filing for divorce, or gives birth before the final judgment of divorce, the law assigns paternity to the husband unless he overcomes the presumption.

Where I practice, a husband may overcome the presumption by showing that another man is not excluded as the father of the child and that the statistical probability of that other man’s parentage is 99% or higher. This determination is effectuated through genetic testing, whether voluntarily or by court order.

Other states have different paternity laws. Take the Florida paternity process, for example.

Parties to a divorce action in Florida may allege that the paternity of a child is contested in either the petition for divorce or the response and counterclaim. Parties can also include contested paternity language in their marital settlement agreements indicating the husband is not the biological father of a child, and therefore, not liable for support purposes.

A judge will not grant a judgment of divorce until the wife gives birth and the husband’s paternity is either established or denied. In some cases, the court may interplead the putative father for child support purposes. Otherwise, paternity and support for the non-marital child must be determined in another action.

You have a couple of options that you can take to protect yourself from the liability of support. If you and the opposing party agree you are not the biological father of the child in question, you may include language evincing this acknowledgment in your settlement agreement.

If the opposing party believes you are the father, or you cannot form an agreement, you will need to amend either your petition for divorce or response and counterclaim to raise the issue.

Cordell & Cordell has men’s divorce lawyers located nationwide that handle paternity actions. To schedule an appointment with a divorce attorney, including Milwaukee Divorce Lawyer Daniel Exner, please contact Cordell & Cordell.