How does my upcoming divorce legally involve my child? 11 Answers as of June 02, 2011

I can't afford an attorney, and am researching filing on my own, but I have one major question to clarify first. I separated from my mentally unstable, mental/emotionally abusive, drug/alcohol addicted husband 3 yrs ago. I would like to finally divorce him. I have a 5-y0 child who was born well before the marriage, for whom no father is listed on the birth certificate and no paternity is established. He is most likely not my husband's child. Do I have to include him in the divorce? My husband has never had any interest in him, has not attempted any relationship with him before or since the split, and has provided no support. Because of my husband's abuse and instability, I would like to omit my child from the divorce if possible, out of genuine fear for my child's safety and well being.

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Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
If you divorce by agreement, and the child was not born of the marriage, then you simply state that "no children were born of the marriage." It could be done the same way in a contested divorce, and if the child was truly not "born of the marriage," then you are not misleading the court. There are some risks. There is a presumption that a child born during the marriage is born of the marriage, and the courts are resistant to leaving a child without a parent. However, if the court does not know about the child, then how can the court address the issue of the child? Stay well.
Answer Applies to: Alabama
Replied: 6/2/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
Under the circumstances that you list, you would likely be justified to exclude/omit your child from the Petition, i.e., not to list your child as a child of the marriage.
Answer Applies to: California
Replied: 6/1/2011
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Your use of the term "omit from the divorce" doesn't describe an accurate understanding of the situation. In the petition, you should specifically identify the child and point out that he was born before the marriage and that no one has been legal adjudicated to be the father. That will clearly show that there is no legal presumption that your husband is the father. Based on that information, the Court will then be able to conclude that your husband has no parental rights that need to be considered in the divorce case, unless your husband affirmatively acts to be declared the father and to be granted parental rights. If you "omit" this information, the question will never be answered and your husband might decide to come back to court in the future to assert his paternity. Omission will do more to encourage possible harm to your child than will including the child as suggested.
Answer Applies to: Colorado
Replied: 6/1/2011
Beaulier Law Office
Beaulier Law Office | Maury Beaulier
The child must be included in the divorce papers and you would be wise to incorporate language that factually set out that the child was not fathered by the other party with an express waiver.
Answer Applies to: Minnesota
Replied: 5/31/2011
Howard W. Collins, Attorney at Law
Howard W. Collins, Attorney at Law | Howard W. Collins
The petition has a place or a requirement to list children of the marriage. You have none, therefore do not list the child.
Answer Applies to: Oregon
Replied: 5/31/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    In Michigan and Ohio the child would not be a subject of the divorce because birth preceded the marriage and the husband has not established paternity. However, if the husband insisted on a paternity test and if he IS the father, the child would be a part of the divorce. Divorces involving children and significant property or spousal support require the services of an attorney. Please see one soon.
    Answer Applies to: Ohio
    Replied: 5/31/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    If the child was not born during the marriage then the child is not presumed to be issue of the marriage.
    Answer Applies to: Connecticut
    Replied: 5/31/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    If your child was not born during the marriage and your husband is not the father, you do not have to list him on your divorce filing.
    Answer Applies to: Georgia
    Replied: 5/31/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    I believe there is a place on the divorce writ, or if manuscripted could include, a statement about the other child as not being the husband's. If he doesn't contest it, you are home free. If he contests it, you will probably have to go for paternity testing. Support would naturally follow if he is the father.
    Answer Applies to: Connecticut
    Replied: 5/31/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    In Washington State, you will need to list the child in the petition.
    Answer Applies to: Washington
    Replied: 5/31/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Let me stress that a pro se divorce is never a good idea and might create some bad results. There are places where the child probably has to be mentioned, including the financial affidavit (and in some cases the petition). That depends on details we do not have.
    Answer Applies to: Georgia
    Replied: 5/31/2011
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