abusedhusband
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Reged: 07/29/07
Posts: 8
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My soon to be ex has filed for divorce twice. I managed to avoid the server until last Monday. Friday I heard from a friend that she is announcing that she is pregnant. We have been separated for 2 years in May and this baby is NOT mine. I have found out from a friend (no lawyer- Can't afford one) that the divorce can't be done now until she pops out this kid and that it will be my legal child. This means I'll have to pay child support for another guy's kid until I pay for a test to prove it's not mine.
Is there ANYTHING I can do to keep her from doing this to me? I'm sure she is laughing all the way to the bank but there has to be some way I can protect myself. HELP!
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jbar
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Reged: 12/16/06
Posts: 1074
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What state do you live in and how long have you been married? Was it a "legal" separation?
I wouldn''t take legal advice from a friend unless he is particularly well qualified, although what he says may be true.
I know someone like you who moved here from another state and became a contractor. He conducts a strictly "cash" business, but will give you a receipt--if you pay extra for it!
Edited by jbar (07/29/07 04:35 AM)
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melanie14
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Reged: 03/11/06
Posts: 3058
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Have a paternity test ordered on the day of the child's birth! Don't sweat it...
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jbar
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Reged: 12/16/06
Posts: 1074
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Whether he should "sweat it" or not depends on what state he lives in. Laws requiring that any man married to a woman, at the time she conceives a child, is the legal father still predominate in this country. These laws apply regardless of DNA tests and are enforced even if the child is a different color than either parent. Haven't you been reading the posts here on this subject, Melanie? I don't know if these laws are worse than the "property division" laws which confiscate one-half of everything a man has and give it to his wife, in a divorce, unless he can prove--to a particularly high standard--that he already had the assets before he got married, or not.
I was just reading some material on post-nuptial agreements. It turns out that a couple probably cannot even have a voluntary, valid post-nuptial agreement, because the morons consider that the man and woman, once married, are "one person" and that a person "cannot make a contract with himself"! I wish these kind of people would go live in a zoo, where they belong, instead of trying to make and administer laws!
Disclaimer: Not legal advice
Edited by jbar (07/29/07 11:40 PM)
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abusedhusband
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Reged: 07/29/07
Posts: 8
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Jbar- I am in Tulsa, Oklahoma. We were married for 9 years and have been separated for more than 2. Not sure what you mean by a legal separation but we have lived apart and she filed for divorce the first time in August 2006.
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abusedhusband
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Reged: 07/29/07
Posts: 8
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I plan on it if nothing else helps, but I don't want to be considered the father of this baby for even a MOMENT. Surely there is something that can be done before the kid is even born. This woman is a real shrew- I caught her telling a friend she was going to throw me out of my own home, so I moved out myself so I wouldn't give her the satisfaction. She'd do anything to trap me now to get back at me for having the upper hand. It sounds like the law isn't on my side here but surely there is SOME way around this problem. It just isn't right for me to be stuck with this woman's kid just because we are married on paper!
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abusedhusband
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Reged: 07/29/07
Posts: 8
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Jbar, your post really scares me. Does that mean that the law will consider this my kid even if I can prove that it's not mine! I'm so screwed.
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jersey girl
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Reged: 08/07/06
Posts: 1646
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I don't know for sure, but, yes, the divorce will be held until the pregnancy is finished. The courts want to make sure they get it all done at once.
Check with a doctor on whether a test can be done pre-delivery that is non-invasive. I don't think a court will order an invasive test.
Once the baby is delivered, you should have a court order ready to do an immediate DNA test.
I am confused - why on earth would you avoid a server? Living separated is much more dangerous to you financially than divorced. She now has legal rights to more support, etc. if she decides to be on limited work during this pregnancy. You are legally responsible for the medical bills she is going to incur, etc.
A legal separation is just as costly as a divorce - at least that is what I was told. So, I paid for medical insurance, liability insurance, etc for my ex for over 2 years. That was FAR better than waiting for him to drive drunk and hit a family and get stuck with that lawsuit.
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gigi
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Reged: 11/06/06
Posts: 5173
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Don't let JBar scare you. He doesn't know what he's talking about & has made it his mission to scare as many men as possible about the laws, whether or not his claims are true, so that they'll support him in some OTHER thing he's got going involving a campaign against community property which he thinks (but is probably wrong about) will save him if he can get it passed... though he's not started even the most basic process of getting it passed, which would involve actually drafting it & presenting it to a legislator who takes it on as their bill to support.
In other words, JBar seems to be kind of a narcissistic nutcase who unfortunately runs around screaming "the sky is falling", and then might scare decent guys like you into doing the wrong thing.
I can't figure out why you would have been ducking service of process from your wife. Being divorced is a WHOLE lot better than being separated & financially tied to an untrustworthy person, for certain! You want to counter-petition to make a claim that she is pregnant by another man, and abandonment (both are claims allowed in Oklahoma due to "fault", and because of the nature of that first one, they may let you go ahead & get a divorce before the birth of the child, knowing it's not yours).
SHe may admit that it's not yours & name a different father, or she may deny it & require a DNA test, either way, you're golden. The idea is that you CAN NOT DUCK THIS, the way you might be tempted to with JBar's advice. Men who try to duck out of dealing with this stuff out of fear of becoming responsible for a kid that's not theirs, might actually become responsible for the kid because they have not properly contested it in a timely manner.
You MUST do this in a timely way, and not let this just go forward without you. Ducking service of process is the LAST thing you should be doing in this situation, you should be EAGER to get it going, don't rush into signing off on something before you understand what it's all about, but most certainly don't try to avoid process, or avoid court, or run from this. If you run & they go forward without you giving them the proper information, they're likely to make you responsible for this kid, and without your contesting it, you could end up responsible forever.
THe stories you may have heard about men who end up paying support for kids who aren't thier own, generally, these stories don't tell you that the men didn't show up in court to say that the kid wasn't theirs, changed their address without tellign the court so they weren't aware of hearings, agreed to waive the right to a DNA test early on and then found out 15 years later that that precious little girl they were so sure was theirs, was not. Once the kid is 15 years old, you can be sure the court is not going to let you ditch him or her. (the same with 14, 13, 12... you're safest getting a DNA test the moment this kid is born... in your situation).
Don't let anyone scare you into trying to pull some fast one, tactic-wise, because that's a sure path to losing this. The ones who lost, were the ones who didn't take the right steps to make it right.
So do this right. Take the papers, respond, accuse her of becoming pregnant with a child not your own, ask for a DNA test.
And contrary to JerseyGirl, I don't know why the courts wouldn't allow a divorce if you're sure the kid is not your own. And if she admits it. It's not NECESSARY to wait till a kid is born to finalize the divorce. Just... well, in cases where there are no kids yet & this will be the first, awaiting the ability to implement a parenting plan will be an issue, but in a case where there are already otehr kids, I've seen the court simply slide a new one (born after divorce) into the same parenting plan with just a new support calculation being done... and in cases like yours (we hope) where all parties agree this is not your kid (we have to hope she'll admit not being with you, because if she doesn't, she'll be proven to be a sl... once the DNA test shows that the kid is not yours, because she'll have insisted that she slept with 2 different men and wasn't CERTAIN of who the father was, which I think is a worse thing to admit than simply admitting that you're separated from your husband & moved on without finalizing the divorce, you know?
But you wont' know if she does the reasonable thing until you TALK to her & ask what's up. Don't assume she's intending to makek you pay for a child hwo is not your own.... (she pretty much can't do that if you contest it soon enough), and don't assume that there's something wrong with you accepting service of process and going through with the paperwork of getting this done. Don't assume the worst when you don't really know her intent.
Her intent might JUST be to get rid of you so she can move on. And for you that would be a great thing...
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abusedhusbandsex
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Reged: 07/29/07
Posts: 4
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Gigi,
First of all, I don't think it's wise to advise my husband to make accusations against me to make himself look better. I have openly admitted to my attorney that I am pregnant with another man's child. I have done nothing wrong and I have nothing to hide.
He had an affair and moved in with his girlfriend the MOMENT he moved out. For all you or I know, SHE could be pregnant too. At least I waited a year before becoming involved.
I fail to see how he comes out "golden" simply because I'm in a stable, committed relationship long after a separation and happened to become pregnant.
Additionally, it's unwise to assume that *I* am "untrustworthy" just because some nutjob came to this board and told you so.
Further, if he requests a DNA test, I will fight it to the death, because there is NO way anyone but my fiance is this child's father, and my STBX will only get one if it is REQUIRED in order for my unborn child to be free of him.
Thank you.
"Abused's" wife
Edited by abusedhusbandsex (07/29/07 11:51 PM)
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abusedhusbandsex
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Reged: 07/29/07
Posts: 4
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BTW, Gigi, I'd LOVE to see an explanation regarding why I am guilty of "abandonment". My stbx emotionally abused me until I was ready to ask him to leave, read in my email that I was going to ask him to move out (because he listened in on my phone calls, read my mail, read my email, and followed me to and from work), then he left of his own accord and moved right in with his mistress, leaving his child with me. So how, pray tell, does that constitute abandonment on my part?
Frankly, although I'm not an attorney (and I'll be sure to run this by MY attorney on Monday), I think that if "Ah" tries to counter the divorce on grounds of adultery and abandonment, his lawyer will laugh in his face, given the circumstances leading to the divorce.
Oh- And the reason AH is avoiding service? He doesn't want to pay child support. Think he'll look good when that comes out? (And yes, of course I have proof)
Edited by abusedhusbandsex (07/29/07 11:55 PM)
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abusedhusbandsex
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Reged: 07/29/07
Posts: 4
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I am "abused husband's" wife, and it's time to knock down the house of cards.
"Abused" called me tonight, ranting about the situation, how he had posted here, and how everyone here was saying I was out to screw him and get him to support me.
I came here and read the thread, and I thought I'd inject a little TRUTH into the matter.
First, Since two weeks after "ah" (He wasn't and isn't abused, so I refuse to continue calling him that) and I were married, he hasn't worked more than TWO months. That's right. He's been trying to get social security disability. Turns out he was faking the disability. I had had enough of his lies, laziness, and bad parenting (He has had little to do with our child all along), and nearly asked him to move out. The house was mine by inheritance. Instead, he threw a FIT and moved out, telling everyone he left me because I had an affair (untrue).
Yes, I sold the house. But I lived there 20 years before he even MET me. His name wasn't on the deed. He has absolutely NO legal or moral right to that home. PERIOD.
When we married, ALL of our friends were mutual friends. He spent a lot of time during our marriage telling our friends lies about me, and after a long time they started to believe them. He screamed at me constantly, called me a [censored], and acted like I had no right to expect him to have a responsibility to his family. He went out with his friends every night, either taking my keys or disabling my car so I couldn't leave without him.
I have not asked for support OR any of our marital property. I've only asked for custody of our child with generous visitation privileges for "ah". You'd think since he has an apparently serious relationship he'd want to be free. I know I certainly do.
I have been trying to divorce him for two years and he keeps moving to avoid service. He shacked up with his girlfriend when he moved out and still lives with her. (Either he set a record for "fastest rebound" or it was HE who had the affair) A year after we split up, I fell in love and became engaged. Two weeks after "ah" was served, I found out that I am pregnant with my fiance's child. The child is my fiance's, I have no intention of the child having ANY ties to "ah", and I'm not out to "screw him". In fact, if there is ANY way WHATSOEVER to get this divorce over with ASAP, I'll take it. My fiance is THRILLED to be a father- to- be, and he wants HIS name to be the one on the birth certificate. My fiance and I used birth control (the pill) faithfully, but I still got pregnant. I would have rather become pregnant AFTER we get married, but it happened and that's that.
Unfortunately, "ah", who doesn't like to claim his children (He has two other children that he was sued for after we were married and he denied paternity, going so far as to accuse the Child Support agency of FAKING THE DNA TESTS), doesn't seem to understand that there ARE men out there who WANT their kids and are happy to claim them.
"Ah's" allegations that I'm out to "screw" him are RIDICULOUS. He has done everything he can to cause problems for me since the separation. He has harassed me, lied about me, stolen from me (He took a LOT of my things and marital property when he moved out), and rarely sees his child. He has SERIOUS mental issues, which is why all I want is my child and a divorce.
I will be speaking to MY attorney on Monday to find out what can be done so that my unborn child won't have to have this man as his or her legal father, "even for one minute", as "ah" said. He's a drama queen and he needs to grow up, move on, and stop trying to exact revenge on someone who spent 9 years of her life putting up with behavior that most people would not have tolerated.
Anyway, I'm out of here. I only registered and posted so that I could inject some truth into the matter. Please be assured that if there is a solution to the issue of the delay in the divorce, my attorney and I WILL solve it. I want it over with ASAP.
Don't believe everything you read. Some people are nuts. "Ah", I suggest that if you want legal advice, you be HONEST in your posts. And don't lie to your lawyer either when you get one. That's a really dumb thing to do.
I will post no more. However, I WILL stick around to see Gigi's explanations. These should be good.
Edited by abusedhusbandsex (07/29/07 11:46 PM)
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theanswerguy
Platinum
Reged: 04/12/07
Posts: 2309
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[quote]Gigi,
First of all, I don't think it's wise to advise my husband to make accusations against me to make himself look better. I have openly admitted to my attorney that I am pregnant with another man's child. I have done nothing wrong and I have nothing to hide.
>>>>>>>>>>Actually you've committed adultery . Being pregnant with another man's child is grounds for a fault divorce in Oklahoma .
He had an affair and moved in with his girlfriend the MOMENT he moved out. For all you or I know, SHE could be pregnant too. At least I waited a year before becoming involved.
>>>>>>>>> Why not get divorced first ? If you can prove his adultery as well both parties will be considered " equally wrong " .
I fail to see how he comes out "golden", as you call it, simply because I'm in a stable, committed relationship long after a separation and happened to become pregnant.
>>>>>>>>>> He'll be golden in that the child is not his and he won't be required to pay child support .
Additionally, it's unwise to assume that *I* am "untrustworthy" just because some nutjob came to this board and told you so.
>>>>>>>>>>>> Lotsa nutjobs around .
Further, if he requests a DNA test, I will fight it to the death, because there is NO way anyone but my fiance is this child's father, and my STBX will only get one if it is REQUIRED in order for my unborn child to be free of him.
>>>>>>>> There is a presumption your husband is the father of the unborn child and his name will be placed on the birth certificate as the father until his paternity has been disestablished .
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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abusedhusbandsex
New
Reged: 07/29/07
Posts: 4
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[quote][quote]Gigi,
First of all, I don't think it's wise to advise my husband to make accusations against me to make himself look better. I have openly admitted to my attorney that I am pregnant with another man's child. I have done nothing wrong and I have nothing to hide.
>>>>>>>>>>Actually you've committed adultery . Being pregnant with another man's child is grounds for a fault divorce in Oklahoma .
I see.. Does that mean he's just fine since he moved in with his Mistress? It's very interesting to hear that he cheats, a year later, after filing for divorce, I get into a relationship, and now *I* am the one who has done wrong. Cute. Untrue, but cute.
He had an affair and moved in with his girlfriend the MOMENT he moved out. For all you or I know, SHE could be pregnant too. At least I waited a year before becoming involved.
>>>>>>>>> Why not get divorced first ? If you can prove his adultery as well both parties will be considered " equally wrong " .
I filed for divorce a LONG time ago. He has avoided service.
I fail to see how he comes out "golden", as you call it, simply because I'm in a stable, committed relationship long after a separation and happened to become pregnant.
>>>>>>>>>> He'll be golden in that the child is not his and he won't be required to pay child support .
Who said I wanted it?
Additionally, it's unwise to assume that *I* am "untrustworthy" just because some nutjob came to this board and told you so.
>>>>>>>>>>>> Lotsa nutjobs around .
I can see that.
Further, if he requests a DNA test, I will fight it to the death, because there is NO way anyone but my fiance is this child's father, and my STBX will only get one if it is REQUIRED in order for my unborn child to be free of him.
>>>>>>>> There is a presumption your husband is the father of the unborn child and his name will be placed on the birth certificate as the father until his paternity has been disestablished . [/quote]
Are you an attorney? If not, then I will take all your statements with a grain of salt until I talk to my own attorney. It's kind of weird all the legal advice being thrown around here by people who don't know the facts.
Oh, btw, My attorney has already told me that adultery cannot be used against me because I have proof he was living with his mistress one day after he moved out. OOPS!
Besides, he's trying to avoid being divorced! LOL!
Edited by abusedhusbandsex (07/30/07 12:00 AM)
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theanswerguy
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Reged: 04/12/07
Posts: 2309
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Are you an attorney? If not, then I will take all your statements with a grain of salt until I talk to my own attorney. It's kind of weird all the legal advice being thrown around here by people who don't know the facts.
>>>>>>>>>>> Well I can read the Oklahoma Statutes on divorce & paternity .
Oklahoma Statutes Citationized
Section 110.2 - Court Order to Submit to Blood, Saliva, Urine, or Other Test
Cite as: O.S. §, __ __
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In any action in which the custody of or the visitation with a child is a relevant fact and at issue, the court may order the mother, the child or father to submit to blood, saliva, urine or any other test deemed necessary by the court in determining that the custody of or visitation with the child will be in the best interests of the child. If so ordered and any party or child refuses to submit to such tests, the court may enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate.
Oh, btw, My attorney has already told me that adultery cannot be used against me because I have proof he was living with his mistress one day after he moved out. OOPS!
>>>>>>>>>>>> That's why I said each party could be found at fault , moron .
Oklahoma Statutes Citationized
Title 43. Marriage
Section 108 - Equally Wrong Parties-Divorce Granted to Both Parties-Powers of Court When Granting Alimony without Divorce or Refusing Divorce
Cite as: O.S. §, __ __
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That the parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce, but if a divorce is granted in such circumstances, it shall be granted to both parties. In any such case or where the court grants alimony without a divorce or in any case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.
Besides, he's trying to avoid being divorced! LOL!
>>>>>>>>>> With you winning personality I can't understand why . Ever wonder why you feel the need to dispute his assertions ? Are you a bit of a control freak ?
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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gigi
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Reged: 11/06/06
Posts: 5173
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Get a grip, wife of original poster, if you'r enot trying to pull a trick by falsely making him pay for a child who is not his, it looks like everyhting will be OK.
It's simply defined as abandonment for being apart for a year, and it's not "adultry", but rather, "being pregnant by someone other than him". It's not something bad, just the thing that gives him the right to ask for divorce, just like you want to have a divorce.
The two of you are so busy being angry at each other and scared of each other that it seems you want the same thing, to be free of each other, and are too afraid to simply do the little things it takes to get there.
It's kind of nasty for you to follow him here and get this nasty. He asked for advice and it seemed he was advised poorly, if he was ducking service of your process server, that was certainly not necessary. It didn't make him a nutjob, it simply makes him a person who was advised to be more scared of this process than he has to be. And if he cheated on you, then I'm sorry, but the two of you are now apart, living apart, and apparently happy that way. So just get the paperwork of it done.
If he's afraid of the paperwork because of some wrong stuff that some peopl etold him, please don't berate us for trying to give him the straight story that this is nothing to be afraid of.
It sounds like there are no children to worry about here, is there any property? What is making the two of you so furious at each other and so scared of each other, a full two years after you separated? By now it should be over except putting pen to paper & getting a judge to sign off on it.
Please, both of you, calm down & Figure out that neither of you is in a position to hurt the other, even if you wanted to. It's over. Unless there's a whole lot of money that the two of you didn't bother to divide up yet & think you'll be fighting over, it's not worth this much anger.
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jbar
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Reged: 12/16/06
Posts: 1074
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From <http://www.schafferlawfirm.com/lawyer-attorney-C14883C8-F81A-4601-826BFE9AD4BB2E19.html>:
"In some states, the presumption of paternity (of the man married to a woman at the time she became pregnant) is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child. A presumed father must pay child support."
The question, then, is exactly what the situation would be in this regard in Oklahoma. The answerguy's assertion that "being pregnant with anothe man's child is grounds for a fault divorce in Oklahoma" would seem to be diametrically opposed to the legal thought and theory behind this law, and I question the accuracy of it. To require the woman's husband to pay CS for another man's child after a divorce based on fault as suggested by theanswerguy is absurd, and to fail to do so would leave the child fatherless and the woman with possibly no means of supporting it.
I have never given legal advice here, and always specifically disclaim doing so. My statements about law have always been more of a generally critical nature, concerning certain broad areas of law, rather than being addressed to specific laws--particularly state-specific ones. It would be nice if others here, who obviously have more resources than I, would make the effort to research case law and share with us specific citations rather than offering their opinions in so authoritative a manner. I would expect that, in this particular situation (as well as all other family law cases), you can find some case law to support almost any position or opinion which you may wish. That is just the shame and, as I have pointed out before, the disgrace of it all! It would not even surprise me if the court eventually ruled that the fiance must "adopt" his own child in order to be legally recognized as the father!
Disclaimer: Not legal advice
Edited by jbar (07/30/07 01:01 AM)
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theanswerguy
Platinum
Reged: 04/12/07
Posts: 2309
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Jbar
Oklahoma Statutes Citationized
Title 10. Children
Chapter 77 - Uniform Parentage Act
Article Article 2 - Parent-Child Relationship
Section 7700-204 - Presumption of Paternity - Rebuttal
Cite as: O.S. §, __ __
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A. A man is presumed to be the father of a child if:
1. He and the mother of the child are married to each other and the child is born during the marriage;
2. He and the mother of the child were married to each other and the child is born within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, dissolution of marriage or after decree of separation;
3. Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within three hundred (300) days after its termination by death, annulment, declaration of invalidity, a decree of separation, or dissolution of marriage;
4. After the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
a. the assertion is in a record with the State Department of Health, Division of Vital Records or the Department of Human Services,
b. he agreed to be and is named as the child’s father on the child’s birth certificate, or
c. he promised in a record to support the child as his own; or
5. For the first two (2) years of the child’s life, he resided in the same household with the child and openly held out the child as his own.
B. A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6 of the Uniform Parentage Act.
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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theanswerguy
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Posts: 2309
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Jbar
The district court may grant a divorce for any of the following causes:
First. Abandonment for one (1) year.
Second. Adultery.
Third. Impotency.
Fourth. When the wife at the time of her marriage, was pregnant by another than her husband.
Fifth. Extreme cruelty.
Sixth. Fraudulent contract.
Seventh. Incompatibility.
Eighth. Habitual drunkenness.
Ninth. Gross neglect of duty.
Tenth. Imprisonment of the other party in a state or federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed.
Eleventh. The procurement of a final divorce decree without this state by a husband or wife which does not in this state release the other party from the obligations of the marriage.
Twelfth. Insanity for a period of five (5) years, the insane person having been an inmate of a state institution for the insane in the State of Oklahoma, or inmate of a state institution for the insane in some other state for such period, or of a private sanitarium, and affected with a type of insanity with a poor prognosis for recovery; provided, that no divorce shall be granted because of insanity until after a thorough examination of such insane person by three physicians, one of which physicians shall be a superintendent of the hospital or sanitarium for the insane, in which the insane defendant is confined, and the other two physicians to be appointed by the court before whom the action is pending, any two of such physicians shall agree that such insane person, at the time the petition in the divorce action is filed, has a poor prognosis for recovery; provided, further, however, that no divorce shall be granted on this ground to any person whose husband or wife is an inmate of a state institution in any other than the State of Oklahoma, unless the person applying for such divorce shall have been a resident of the State of Oklahoma for at least five (5) years prior to the commencement of an action; and provided further, that a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant. The court shall appoint a guardian ad litem to represent the insane defendant, which appointment shall be made at least ten (10) days before any decree is entered.
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It's quite easy to prove fault with a child that is not the child of the legal husband .
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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jbar
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Posts: 1074
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Thank you. That's all very impressive but, unfortunately, still not totally convincing.
How could a woman be divorced on grounds of adultery, even if speciifically permitted by statute, based on the fact that she is pregnant with a child not that of her husband, if other common or case law maintains that "her husband at the time of the child's conception IS (non-rebuttably) the child's father"? If a court simultaneously recognized both laws, then the man would be "shooting himself in the foot" to divorce his wife on these grounds as he would then have his divorce, but would still be the father of the child, with the full financial and other associated responsibilties, but--barring living with his ex either in a technically illegal manner, or REmarrying in a common-law relationship--without her assistance with the child. The alternative would be for her to have custody of "his" child, even though a proven adulterer, and possibly to require CS and separate maintenance!
This would be only one of many paradoxes that exist in "family" law, and I could cite a number of them with relation to Texas "community property" law, in which appeals courts have boldly and blatently overturned (rather than merely "interpreting"} statutes, and in which subsequent courts have simply chosen the version of law--the case law or the statute--which they liked!
As in all law, until the judge rules, all you have is an argument!
Disclaimer: Not legal advice
Edited by jbar (07/30/07 01:51 AM)
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theanswerguy
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Posts: 2309
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Because a presumption is just that , presumed unless there are undeniable facts to make the presumption untrue .
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Never let your sense of morals get in the way of doing what's right. Isaac Asimov
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jbar
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Posts: 1074
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===========================================================
... a presumption is just that , presumed unless there are undeniable facts to make the presumption untrue .
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Yes, unless Oklahoma is one if the "states" (plural) mentioned as having CONCLUSIVE* presumption, in addition to California, in the following:
http://www.schafferlawfirm.com/lawyer-attorney-C14883C8-F81A-4601-826BFE9AD4BB2E19.html
Additionally, from the same site:
"MANY* states, however, have laws which IRREBUTABLY* presume (that is, the presumption cannot be disproved) that a child born during a marriage is the child of the husband, regardless of who the biological father is."
Apparently Florida was one until the legislature there recently changed the law, in a big attention getting process which was discussed here at some length. The thread revolved around the question of mandatory DNA testing of the child and supposed father, at birth, to avoid any mistaken paternity assumptions. This was to avoid the legal assignment of paternity--after a certain time has passed, even if paternity was eventually disproven with DNA tests.
Again, it wouldn't surprise me if the man could get his divorce (if he wants it), based upon the adultery proven by DNA and the admission of the woman that she hadn't been raped, but yet still be the legal father of the child anyway!
* Caps mine
Edited by jbar (07/30/07 01:47 PM)
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gigi
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Posts: 5173
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JBar, do you not see that your alarmist point of view of this is the type of nonsense that has gotten the original poster so worried that he's been ducking service for 2 years? Apparently, according to AnswerGuy's research, this is a REBUTTABLE presumption in Oklahoma, not to mention that the marital dissolution statute, itself, allows a man to claim that the baby isn't his, which would get him off the hook for support of it. Please stop doing this in THIS threat because this poor guy & his VERY ANGRY wife are trying to figure out how to solve thier own, personal problem... and the problems of Texas & Florida and California don't matter to them.
They have been totally screwed up & their own issues blown out of proportion in thier own minds by listening to alarmists like you, and it's going to make things worse for thier own child and thier ability to move on in their lives, peacefully if not happy with each other. In a situation which seems easy to find a truce in (it seems they're each fine with teh current situation and ONLY need to finalize it), talk like this only polarizes them, makes them each feel the need to "protect" themselves and be hateful & nasty to each other, and the result is something you advocate against, lots of lawyers.
Original poster & his estranged wife. Please review what you've each written and figure out how to see past the anger & resentment in the posts, the personal attacks, etc. Realize that the bottom line is that you each want the same thing to happen. You want to be rid of each other. This should not be so hard to accomplish. You've been apart for two years, neither of you wants anything that the other has, so just formalize it... say, "I keep what I have, he keeps what he has, we keep up the parenting schedule with our current child and child support according to guidelines (understanding that it will be a low amount), and the current pregnancy is being claimed & attributed to a different man so that child is NOT a child of the marriage and therefore NOT subject to parenting rights or child support by this husband". Simple as that. DOn't make this harder than it has to be.
Original poster, there's no need to be as afraid as people as JBar would have you believe. Please see that lots of people get divorced every year without making the record books for being scr*wed, and you may very well be one of them. I understand WHY you feel this way, if all this anger she has shown is directed at you regularly, but her anger has zero danger to you... ALL SHE WANTS is to be rid of you. So please, let that happen. Oh heck, she may also want to make you look like a jerk in the meantime, but who cares? Not the court, and if you're really upset at soem things she's said about you, you can ask that it be sealed & she instructed not to badmouth you in any way that it could ever get back to the kid... but I'd say that in this situation, it's probably like trying to close the barn door after the horse has already escaped... you've been ducking process for 2 whole years and this is ridiculous. She's had plenty of time ot live, move on, and badmouth you.
The worst is over, you two. Just figure out how to put it on paper & finalize it, OK?
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jbar
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Posts: 1074
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From Theanswerguy:
Oklahoma Statutes Citationized
Title 10. Children
Chapter 77 - Uniform Parentage Act
Article Article 2 - Parent-Child Relationship
Section 7700-204 - Presumption of Paternity - Rebuttal
Cite as: O.S. §, __ __
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A. A man is presumed to be the father of a child if:
1. He and the mother of the child are married to each other and the child is born during the marriage;
2. He and the mother of the child were married to each other and the child is born within three hundred (300) days after the marriage is terminated by death, annulment, declaration of invalidity, dissolution of marriage or after decree of separation;
3. Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within three hundred (300) days after its termination by death, annulment, declaration of invalidity, a decree of separation, or dissolution of marriage;
4. After the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
a. the assertion is in a record with the State Department of Health, Division of Vital Records or the Department of Human Services,
b. he agreed to be and is named as the child’s father on the child’s birth certificate, or
c. he promised in a record to support the child as his own; or
5. For the first two (2) years of the child’s life, he resided in the same household with the child and openly held out the child as his own.
B. A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6 of the Uniform Parentage Act."
I wonder what Article 6 of the Uniform Parentage Act says. Since it has to be "adjudicated" it seems unlikely that it could mean a simple DNA test could release the man of all paternal liability. Most likely a judge (or even a jury) would decide if he is to be ruled the legal father, based on a number of things! If the court rules against him, he had better have plenty of money for an appeal, and will probebly lose it!
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gigi
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"adjudicated" is not as scary a standard as you're making it. In this case, all that has to happen is she has to say, "the kid's not his", he says, "not mine", and no DNA needed, the court will probably sign off on it... MAYBE the court will require her to name the other father, maybe not, but I suspect she wouldn't mind doing it & even the other father would be proud ot step up & say "It's mine" if that's what the court needs.
And DNA is considered pretty sufficient for an "adjudication" in just about every court I know of. The ONLY exceptions that you're talking about in other VERY famous and VERY rare cases, are where the guys got the DNA evidence years after the fact, after having voluntarily agreed that the kid was theirs & supporting the kid for years, etc., etc... this is getting repetitive. You're not getting it.
THIS family is not served by this discussion.
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jbar
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