Q: My husband and I agreed on everything and drew up a divorce agreement. We went to the hearing and the judge was asking us questions about the agreement and we said we agreed to everything but she said she couldn’t divorce us that day. She asked if we had any kids since the marriage and I do, but my husband is not the father. I didn’t list any father on my son’s birth certificate so I don’t understand the problem. I didn’t even ask for child support.
Why can’t I get divorced?
A: When a child is born during a marriage, there is a presumption that the husband is the child’s father. Of course, that is not always the case, but typically it is. Before the judge can grant the divorce, you need to deal with the paternity of your son. If you and your husband are certain he is not the father, the easiest fix is to fill out a form available at the court house voluntarily acknowledging that your husband is not the father. Once signed and filed with the court, you will be given a hearing date. This process will forever sever any rights that may exist between your husband and your son. Your husband can never ask for any parenting time with your son and you can never ask that he be ordered to pay child support. If there is any possibility that he may be the father, you should have a genetic marker test performed before completing the form.
Assuming you are sure that he is not the father and he is willing to acknowledge he is not the father, you can file the form and ask for another divorce hearing to be held at the same time as the non-paternity hearing. This time around, the judge will first deal with the paternity issue and then grant your divorce.
While you are at it, consider filing a paternity complaint against your son’s actual father so you can begin to receive child support. Of course, he may turn around and ask for parenting time with your son. Depending on who he is and your reasons for not listing him on the birth certificate, filing for child support could be either a blessing or a curse. If the only reason for keeping him out of your son’s life is the fact that your husband would learn of an affair, where that cat is clearly out of the bag, now is the time to get yourself some help in raising your son and let him get to know the other side of his family.
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