In North Carolina, spouses must be separated at least one year to be eligible for their divorce. During this year of separation, you are still considered legally married despite the date of separation affecting many marital rights. Compared to many other states, North Carolina’s separation period is longer.
As we all know, a lot can happen in a year. During your year of separation, there are some things to consider when you begin the process of moving forward with your new life and potentially adding a little one to your family.
If a child is conceived by a wife during that separation period, the law will consider the husband as the father of the child, even if the actual father is someone other than your soon-to-be ex-spouse. North Carolina presumes that the person you are legally married to is the father to any children conceived prior to receiving the Judgment of Divorce, regardless of the date of birth. In North Carolina, the hospital will likely either try to put the name of your soon-to-be ex-spouse (even if he is not the biological father of your child) or leave the “father” portion blank on the birth certificate. Many people are unaware of this issue and become frustrated when the child’s biological father is not added to the birth certificate at the hospital.
If this issue arises for you, your child’s biological father can take steps to add his name to the birth certificate. This process is called “Legitimation” in North Carolina. During this legal process, your soon-to-be ex-spouse will be considered a necessary party to the action and will have to be served with the legal documents because of certain rights that attach to the birth of a child during a marriage. While it may be uncomfortable to involve your soon-to-be ex-spouse, it is a necessary requirement to add the biological father to your child’s birth certificate and preserve the rights of the biological father and child in this unique situation.
Additionally, I always recommend that the biological father voluntarily seek out a DNA test. While a DNA test is not required for a Legitimation, the reliability of DNA evidence in establishing biological proof of paternity provides dependable evidence at the hearing on the matter.
Having an attorney help your child’s biological father file the necessary paperwork and represent him through the process can help ease the stress of becoming a new parent and dealing with the legalities of fatherhood. Our team can help assist you in this process and guide you on the steps to making sure your child’s birth certificate is accurate, but more importantly, that the legal rights of all parties involved and the child are protected.
If you conceived a child during the year of separation, our Modern Legal Team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
