QUESTION

Do I have to wait a full separation period of 12months instead of 6months if my husbands name is not on my sons birth certificate?

Asked on Nov 25th, 2017 on Divorce - Virginia
More details to this question:
My son was born 6/20/2015, his father was not in the picture and I am the only person on the birth certificate. We attempted to reconcile after no contact for over a year and got married 1/10/17, however, it did not work and we have now been separated since 9/1/17. Since my son was not born while we were married and his father is not on the birth certificate and has not tried to establish paternity, do we still have to wait a full 12 months before we can get an uncontested divorce?
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1 ANSWER

Family Law Attorney serving Tysons, VA
1 Award
That's an interesting question.  Ordinarily, even if the child was born prior to the marriage the act of marrying "legitimizes" the birth and it is considered a child of the marriage.  I think if you were saying that the child is NOT your husband's child then it would be different, but it seems you are acknowledgin that it is your husband's child, even if no paternity test has been done.  It's something you could try to argue to the judge, but is it worth it?  You could go through the time and expense of filing for divorce only to have your case dismissed and have to wait another six months if the judge doesn't buy your position.  I'm honestly not sure if anyone has tried to argue this before.  In any event, you would need a written property settlement agreement that resolves any issues beteween you in order to file a diovrce after a six month separation.  Have you and your husband resolved all issues?  If not, then this question is moot.  I'm leaning toward thinking you have a valid argument, but I would still recommend waiting until you have a one year separation rather than risk it. 
Answered on Nov 26th, 2017 at 9:50 AM

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