Legal Question in Family Law in Massachusetts

Re: Divorce with child issues

This is not as simple as you may think. There will be a need to prove your husband is not the father to the satisfaction of the court.

I suggest you contact an attorney for assistance. The court will be concerned primarily with the best interest of the child.

Please feel free to contact me if you have more questions.

Re: Divorce with child issues

If you were to get a divorce from your current husband, certainly the issue of this child would need to be addressed. In Massachusetts, a child born to married spouses is presumed to be the legal child of both spouses.

Regarding child support, so long as your current husband is considered the child's father, a court can always order that he support his child. You may not waive this right, even if you are both in agreement, because a child always has the right to support from his/her parents.

If the biological father of your child wishes, he may execute a voluntary acknowledgment of paternity, and at the same time your current husband can execute a waiver of parental rights to the child.

Please feel free to contact me if you would like to schedule an office consultation.

Re: Divorce with child issues

Your husband has only this opportunity to disclaim paternity. He certainly has the right to do so in the litigation -- indeed, this is his only legal chance to do so.

Why would your husband get in trouble if he had nothing to do with being named the father on the birth certificate? If anyone is at risk, it is you, if you committed perjury in naming your husband as the father on the application for the birth certificate. I tend to doubt, though, that such a charge would be pursued.

Obviously, the court is going to have to be advised of the facts to rule that husband is not the father.

Re: Divorce with child issues

You are going to have to pursue a divorce action and at the same time, a paternity action. If your husband will agree to those terms, you don't have much to worry about.

Re: Divorce with child issues

A child born during marriage is presumed to be that of both spouses.

The divorce Court will likely require you to file a paternity action with the child's biological father, if known, as it must be concerned with the child's best interest and that the child be supported, by both parents.

As this could get complicated it is suggested you retain an attorney even if everyone is in agreement as the parties to a divorce cannot agree that one need not support a child unless the presumption of legitimacy is rebutted. Good Luck!