I am a Houston uncontested divorce lawyer. I do, and have done, many uncontested divorces. As cases go, they are generally on the easier side of the curve compared to most. In fact, they are not much work at all…if they are truly uncontested…and without children, a prior court order or children from another partner since the spouses have been separated.
Without fail, I’m sitting in the courtroom waiting for my turn to free a client from the bonds of a failed marriage when I see a Pro Se party (someone who acts as their own lawyer) approach the bench. They have all of their paper work, nice and tidy, their “what to say to the judge list” ready to go, and finally the judge says, “Please raise your right hand…do you swear to tell the truth….”. All is going well and it seems as though a divorce is in reach until the judge asks a question like:
1. Are you currently pregnant?
2. Are your children under a current court order?
3. Have you had a child with anyone else during the marriage?
The party answers YES to one of these and is quickly informed that their pleadings are incorrect or that they have not followed proper procedure. Clueless to the failings in their pleadings (because the judge won’t tell you what to fix) the party then leaves the courtroom only to call an attorney, try again until they get it right or do nothing until their case is inevitably dismissed.
I ran into such a person today in the Family Law Center. She approached me in the hallway and asked an all too familiar question when wearing a suit in a downtown courthouse, “are you a lawyer”? We talked briefly and I found out that she had just been through what I described above and answered the third question “Yes”. I began telling her what was wrong and how to fix it when I realized that what I was telling her was quite complex.
First I had to explain to her that even though her hubby knows that he is not the father of her newest child, the law says that a child born during a marriage is a child “of the marriage” and presumably, the husband is the father. This presumption is rebuttable, of course (for all you lawyers reading this) but she didn’t seem to understand what I was saying.
As I went into the paternity portion of my instructional, it was clear that I was losing her. Asking a court to adjudicate Mr. New Guy to be the biological father of the child the subject of the suit and to establish the parent-child relationship for all purposes just doesn’t ring clear to most lay persons.
She really thought I was crazy when I informed her that her new boyfriend/father of the child must be a party to the suit and sign a waiver of service just like hubby did. “Why?”, she asked. “He knows it’s his kid and besides, we are getting married when this is all over!”. I told her this…”naming a man as the legal father of your child is a big deal and carries with it big responsibilities. Courts want to make sure the dad-to-be is aware of his new title before they sign an order obligating him to pay child support and everything else that comes with fatherhood in these cases.” I wasn’t being sarcastic for the sake of being sarcastic but I was trying to simplify the legislative intent behind such a law.
I went on to tell her that the child and her boyfriend are likely to be required to take a paternity test under court order before a divorce is granted. This ensures that dad really is dad and avoids a new law suit at a later time if her boyfriend discovers he’s always shot blanks or that mom has a very busy and loose social life…if you know what I mean.
After explaining all of the necessary substance and form of what she needed to do I was confident that she had no idea what to do. I gave her a card and told her to call if I could help. Don’t get me wrong. She seemed like a very intelligent woman and she certainly had a great attitude about the task ahead. Unfortunately for her, she bit off more than she could chew and it will take more than a quick trip to the law library to move on from her life with hubby. I wish her luck.
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