How and When is Parentage Addressed in Divorce?

There are two unique situations where parentage must be addressed in a divorce action: when the parents were not yet married at the time of the child’s birth and when the wife is pregnant at the time of the divorce proceedings.

Under Minnesota law, if a child was born previous to a marriage and parentage has not yet been addressed, then parentage will need to be addressed in a divorce action. The court can make determinations on parentage based on the agreement of the parties that the husband is the father. Also, if the parties signed a Recognition of Parentage form at the hospital, there is a presumption that he is the legal father and short of any competing presumptions, the court can use that to adjudicate him the father at the time of the divorce. Also, if there are remaining questions about paternity, genetic testing is available through the court.

A more difficult scenario is when the wife is pregnant at the time of the divorce. A husband is presumed under Minnesota law to be the legal father of any child born during the marriage or within 280 days following a divorce. If the wife is pregnant at the time of the divorce with another man’s child, the presumption can be outweighed by genetic testing or agreement of all parties. However, if both men and the wife agree, the issue can be addressed through a Recognition of Parentage being signed by the biological father along with a Joinder by the husband at the same time, after the child is born.

Addressing pregnancy during divorce is more difficult because the court cannot make determinations about paternity until after the child is born. Often in the court’s final divorce order, the pregnancy will be addressed by stating that a Guardian Ad Litem is appointed and that the parties will address the paternity issue in a hearing following the expected date of birth.