Non-Marital Children: Overcoming the Marital Presumption in Wisconsin

In Wisconsin, if a child is born during a marriage, the husband is presumed to be the father. But what happens in situations where, for example, the parties have been separated for several months while your divorce is pending, and the wife becomes pregnant with someone else’s child. Can the presumption be overcome?

The answer is: not automatically. If your divorce has not been finalized, the child is considered “born to the marriage,” and is presumed to be the husband’s.

This is why the wife is asked during divorce proceedings, “are you currently pregnant?” If she is, the court will usually not grant the divorce. The idea behind this is that the child is entitled to a legal father who shall be responsible (financially, if not otherwise) for the child. Therefore, the court is highly reluctant to make a ruling that would leave the child without a legal father.

Husbands who are the legal fathers have notoriously found this presumption to be unfair, with the argument being that the presumption takes away the father’s due process rights. The Supreme Court of the United States addressed this argument over 20 years ago and found that the presumption that the mother’s husband is the child’s father does not, in fact, violate a father’s due process rights.

The presumption may be overcome, however, if another man who is biological father, even though not yet the legal father takes a genetic test, and the results show a statistical probability of that man’s parentage as 99.0% or higher. If this turns out to be the case, the court will likely order the wife to commence a paternity action against the biological father. Once paternity is established, the presumption against the husband can be overcome and the divorce can be granted.

Therefore, in situations where a child is born of the marriage but is not the husband’s biological child, it is wise for the wife, or her attorney, to commence a paternity action against the biological father immediately. In the alternative, if the wife is arguing that the child is, in fact, the husband’s child biologically, the husband or his attorney can ask the court to order genetic testing, if the husband has a doubt.

Please note, in most cases where paternity of the child is at issue in a marriage, the court appoints a Guardian ad Litem for the best interests of the minor child. The Guardian ad Litem will make recommendations for the best interests of the child, such as requiring the husband and alleged biological father to undergo genetic testing that will work towards figuring out who the biological father of the child is, and who will be found to be the legal father of the child.

8 thoughts on “Non-Marital Children: Overcoming the Marital Presumption in Wisconsin

  1. What if no one is contesting who the father is? Will the paperwork be put on hold or would we need to start all over?

    • I am not certain what your exact question is. However, I will say that it doesn’t matter if the identity of the father is contested or not. If the father is not your husband, these steps must be followed.

  2. What if the Bio father is unknown and the husband believed he was the father until the mother admitted AFTER the divorce was finalized that the child may not be his? is there a way to order a DNA test that is admissible in court? (we were informed the one you buy at walgreens is NOT admissible, and the mother is with holding the child from placement times anyways so we cant even do an “at home” test)

    • This is a very complicated question and situation. The husband is always presumed to be the father of a child born during the marriage and that presumption has to be overcome by the court who considers several factors. Depending on the age of the child and the length of the marriage, the court may or may not entertain a motion to reopen this issue and order DNA tests. For example, if the child is very young and the marriage is short, the court could allow it. However, if the child is older and husband has been the only father he knows, the court may not as not being in the best interests of the child. You should consult with an experienced divorce attorney in your area to discuss all of the details and determine what your options are.

  3. I am unsure what forms to file for my divorce. My husband and I have been apart for about 5 years and I have since had a child with someone else. We have already gone through the paternity testing and established my boyfriend the father. Now that I’m filing for divorce, do include my child in the paperwork?

    I tried to take this route and there are sections to battle out child support and custody. These issues are irrelevant because my husband is not the father.

    I’ve been researching for weeks and I cannot find an answer. I don’t know where else to ask at this point.

    Thanks in advance!

    • Yes you need to list your child. Until the court specifically finds otherwise, which sounds like it shouldn’t be an issue, your child is presumed to be a child of the marriage. The pre-printed forms are not very forgiving in terms of adding extra provisions but if an attorney drafted the Petition, he or she would likely add language stating that you are alleging this is a non-marital child and asking the court to find same. The court will also likely still require a Guardian ad Litem for your child. I strongly advise you consult with an attorney.

  4. Me and my husband have been married going on 10 years I ended up having an affair and I now have 7 month old daughter my husband is currently incarcerated but claimed her as his own his name is on the birth certificate and she has his last name her biological dad it’s just not wanting to step up and get rights I’m just wondering if it’s possible for him to do that me and my husband have no intention on separating and we have two older children together my two older children believe their little sister has the same dad

    • The law says that your husband is the father. The only way that can be overcome is if the court makes a finding to the contrary. The bio dad can try to file a paternity action but you and your husband can object. Unfortunately, depending on the circumstances, especially with your husband’s incarceration, the court could find that it is in the best interests of your child to overcome the presume and grant the bio dad paternity. You should seek the advice of an experienced family law attorney to assist you in this matter.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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