Paternity Law Question:
How does paternity law address situations where a wife gives birth to another man’s child while still married to her husband?
I have been separated from my wife for three years, but we are not legally divorced yet. She is pregnant with another man’s child and will give birth while we are still legally married.
Is the child considered mine since we are still married even though it’s impossible that I’m the biological father?
I am not licensed to practice law in your state so I cannot offer legal advice on divorce. However, I can give you general divorce tips for men on how the state I am licensed in (Texas) would handle your situation.
Under the Texas Family Code, a man becomes a father if his paternity is presumed. §§160.102(13), 160.201(b)(1).
In Texas, there are many ways that a presumption can be created that a man is the father of a child:
1) he is married to the child’s mother, and the child is born during the marriage;
2) he was married to the child’s mother, and the child is born within 300 days after the marriage ended (i.e. by divorce);
3) he married the child’s mother before the birth of the child in apparent compliance with the law, and the child is born during the invalid marriage or within 300 days after the marriage ended;
4) he married the child’s mother after the birth of the child in apparent compliance with the law, he voluntarily asserted his paternity of the child, and (a) the assertion is in a record filed with the Bureau of Vital Statistics, (b) he is voluntarily named as the child’s father on the child’s birth certificate, or (c) he promised in a record to support the child as his own; or
5) he continuously lived in the same household with the child during the first two years of the child’s life, and he represented to others that the child was his own.
It seems like only factors 1 and 2 listed above would be relevant to your situation, as it appears that you are still legally married to your wife.
Under Texas law, to rebut one of the presumptions of paternity, you must either file a suit to adjudicate parentage, or file a valid denial of paternity and a valid acknowledgment of paternity by another person (the real biological father).
Consult with a mens divorce lawyer in your jurisdiction for specific legal advice on divorce in your state.