Married Woman Pregnant by Another Man, Who Pays Child Support?
When a married woman becomes pregnant by another man, the husband is legally presumed to be the father in most states—even if the biological father already pays child support for other children. Legal paternity determines who pays, not biology. The outcome depends on state paternity laws, whether the marital presumption is challenged, and timing of divorce proceedings.
Who Is Legally Responsible for Child Support?
Legal paternity controls support obligations, not biological paternity. If the wife is married when the child is conceived or born, the husband is presumed to be the legal father under the marital presumption in all 50 states.
Marital Presumption Explained
The husband is automatically the legal father if the child is:
- Conceived during marriage
- Born during marriage
- Born within 300 days after divorce in most states
This applies even when everyone knows the biological father is someone else.
When Does the Biological Father Pay?
The biological father only pays child support if:
- He establishes legal paternity through court action
- The husband successfully disestablishes paternity
- Both parties agree and courts approve the arrangement
Without legal paternity established, the biological father has no automatic support obligation for this child—regardless of whether he pays support for other children.
How Existing Child Support Affects New Obligations
If the biological father already pays child support for other children, courts must determine how to handle additional obligations.
Calculating Support with Multiple Children
Sequential Analysis: Most states calculate existing obligations first, then determine support for additional children from remaining income.
Income Shares Model: Courts may combine all children and recalculate total support proportionally across all children.
Percentage of Income Model: Some states apply fixed percentages that increase with each child (e.g., 20% for one child, 28% for two).
Related article: Can I Sue My Wife for Getting Pregnant by Another Man?
Does Existing Support Reduce New Obligations?
Generally no. Courts prioritize each child’s right to support. However:
- Existing obligations are factored into available income
- Courts may deviate from guidelines if paying both creates hardship
- Modification of first order may be possible but not automatic
In New Jersey, courts use the child’s existing support as a deduction when calculating support for additional children, but won’t automatically reduce the first order.
What Happens During Divorce?
Pregnancy complicates divorce proceedings significantly.
States That Restrict Divorce During Pregnancy
- Texas: Cannot finalize divorce while wife is pregnant
- Arkansas: Courts postpone until birth
- Missouri: Judges typically delay proceedings
- Arizona: Courts refuse finalization during pregnancy
States That Allow Divorce During Pregnancy
- California: Can finalize but custody/support wait until birth
- New York: No prohibition on finalization
- Washington: Law prohibits judges from delaying divorce due to pregnancy (Wash. Rev. Code § 26.09.030(e))
- Pennsylvania: Separate proceedings allow finalization
Timing matters because the 300-day rule means the husband may be presumed father even if divorce finalizes before birth.
Challenging Paternity: Disestablishment Process
The husband can challenge paternity, but faces strict requirements and deadlines.
Requirements by State
Florida (§ 742.18):
- DNA test showing exclusion
- Current on child support
- Newly discovered evidence
- Cannot have adopted child
Louisiana:
- Must file within one year of birth or discovery
- Clear and convincing evidence beyond DNA
- Cannot succeed if voluntarily assumed responsibility
California:
- Generally two years to challenge
- Longer if can prove fraud or material mistake
- Courts consider established parent-child relationship
What Courts Consider
- Best interests of child: Established relationships may be protected over biological truth
- Equitable estoppel: If husband held child out as his own, courts may bar challenge
- Timing: Strict deadlines in most states
- Knowledge: Whether husband knew or should have known he wasn’t biological father
Critical: Disestablishment eliminates future obligations only—not past support paid.
Biological Father’s Rights and Obligations
The biological father must establish legal paternity before gaining rights or owing support.
How to Establish Paternity
Voluntary Acknowledgment: Both parents sign official state form
- Same legal effect as court order
- Creates immediate support obligation
- Can be withdrawn within 60 days in most states
Court Action: File paternity petition
- Requires overcoming marital presumption if mother is/was married
- DNA testing ordered by court
- Results showing 97-99% probability typically establish presumption
Administrative Process: Through state child support agency
- Lower cost
- Streamlined procedures
- Available for unmarried parents
Barriers When Mother Is Married
The biological father faces significant obstacles:
- Must overcome marital presumption
- May need mother’s cooperation
- Courts prioritize intact marriages
- May be barred if couple reconciled
In B.C. v. C.P. & D.B. (Pa. 2024), Pennsylvania’s Supreme Court dismissed a biological father’s paternity action when the married couple reconciled, holding that temporary separations don’t defeat the marital presumption when marriage is ultimately intact.
Custody Implications
Presumed Father’s Rights
Until paternity is disestablished, the husband has:
- Legal custody rights
- Decision-making authority
- Right to seek visitation or custody modifications
Biological Father’s Rights
Before Establishing Paternity: No custody or visitation rights
After Establishing Paternity: Can seek custody based on child’s best interests
Courts balance biological connection against established psychological parent-child relationships.
DNA Testing Procedures
When Testing Occurs
Prenatal: Non-invasive testing available after 7-8 weeks but results not legally binding until confirmed after birth in many states
After Birth: Court-ordered testing through state-approved laboratories
- Buccal swab from child, mother, and alleged father
- Results in 1-2 weeks
- 97-99% probability threshold for presumption in most states
Costs
- Court-ordered: Often state-funded initially
- Alleged father may reimburse if results confirm paternity
- Private testing: $300-$500
- Challenge testing: Requester pays
State-Specific Rules
| State | Marital Presumption | Disestablishment Deadline | Divorce During Pregnancy |
| California | 300 days | 2+ years (varies) | Allowed |
| Texas | 301 days | No specific statute | Prohibited |
| Florida | During marriage | Newly discovered evidence | Allowed, typically delayed |
| New York | 300 days | No specific deadline | Allowed |
| Louisiana | 300 days | 1 year | Restricted |
| Washington | 300 days | Varies | Explicitly allowed |
Dual Paternity: Can Two Men Be Legal Fathers?
Generally no. Most states recognize only one legal father at a time.
Exception: Some legal theories permit a child to receive support from biological father even when mother is married to another man, but only the biological father would be ordered to pay—not both.
Reality: If biological father isn’t established as legal father, he owes nothing. If husband is legal father, he pays regardless of biology.
Practical Steps
If You’re the Husband
- Request DNA testing immediately—don’t wait
- Challenge paternity during divorce—final judgments may be preclusive
- Don’t sign birth certificate if you have doubts
- Avoid holding child out as yours to prevent estoppel
- Document timeline showing no sexual contact during conception
If You’re the Wife
- Disclose pregnancy to avoid complications
- Establish biological father’s paternity before divorce finalizes if possible
- Address financial support for pregnancy and birth
- Ensure accurate birth certificate
If You’re the Biological Father
- File paternity action immediately—timing is critical
- Register with putative father registry if your state has one
- Understand obstacles—marital presumption favors husband
- Document involvement—show intent to parent
- Seek legal counsel—standing requirements vary by state
Timeline Expectations
Uncontested Paternity: 2-4 months Contested Paternity: 6-18 months Disestablishment: 6-12 months Divorce with Pregnancy: Add 9+ months if state requires post-birth finalization
Key Points
Legal paternity determines support obligations, not biology. The husband is presumed father if child is born during marriage or within 300 days of divorce.
Existing child support doesn’t eliminate new obligations. Courts calculate support based on available income after existing obligations, but each child has independent right to support.
Strict deadlines apply. Most states impose time limits for challenging paternity—often 1-2 years from birth or discovery.
Biological father must establish paternity through voluntary acknowledgment or court action to have rights or obligations.
State laws vary significantly on divorce timing, disestablishment procedures, and presumption rules.
Frequently Asked Questions
Can the biological father be forced to pay if he’s already paying support for other children?
Only if he establishes legal paternity or the husband disestablishes paternity. Existing support obligations don’t create automatic liability for additional children. However, once paternity is established, courts will calculate his support obligation considering his existing obligations.
Will my existing child support be reduced if I have another child?
Not automatically. You must petition the court for modification. Courts consider total obligations but prioritize each child’s right to support. Some states use sequential analysis, calculating existing obligations first then determining support for additional children from remaining income.
What if the husband knows he’s not the biological father but wants to remain the legal father?
He can choose not to challenge paternity. Once the child is born and he’s established as legal father, his parental rights and obligations continue unless someone else successfully establishes paternity and he disestablishes his own.
Can I establish paternity for the biological father while still married?
Yes, but it’s complex. The biological father can file a paternity action, but must overcome the marital presumption favoring your husband. Courts may refuse if they consider the marriage “intact.” Success depends on state law and specific circumstances.
What happens if I miss the deadline to challenge paternity?
In most states, you’re permanently barred from challenging. You remain the legal father with full support obligations regardless of DNA evidence. Some states allow challenges based on fraud, but proving fraud is difficult.
Does the biological father have rights to see the child if he’s paying support?
Only if he establishes legal paternity. Support obligations and custody rights are connected—both flow from legal paternity status. Without legal paternity, he has no visitation rights regardless of biology.
Can I recover past child support if I later prove I’m not the biological father?
No. Disestablishment eliminates future obligations only. You cannot recover previously paid support. This is why challenging paternity quickly is critical.
This article provides general legal information. Laws vary by state and individual circumstances differ. Consult a family law attorney in your state for advice specific to your situation.
Legal References:
- California Family Code §§ 7540, 7611
- Texas Family Code § 160.204
- Florida Statutes § 742.18
- Washington Revised Code § 26.09.030(e)
- B.C. v. C.P. & D.B., Pennsylvania Supreme Court (2024)
- Uniform Parentage Act (2002)
Last Updated: December 2024
About the Author
Sarah Klein, JD, is a former family law attorney with over a decade of courtroom and mediation experience. She has represented clients in divorce, custody cases, adoption, Alimony, and domestic violence cases across multiple U.S. jurisdictions.
At All About Lawyer, Sarah now uses her deep legal background to create easy-to-understand guides that help families navigate the legal system with clarity and confidence.
Every article is based on her real-world legal experience and reviewed to reflect current laws.
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