Legal Fathers and Biological Fathers. Divorce in SC and its Consequences.

The Husband is the Legal Father of the Minor Children of the Marriage in SC

By M. J. Goodwin


A question that is coming up more and more frequently  results from a situation similar to this one:  Husband and wife marry.  The marriage is short-lived.  There are no assets and no children born.  The parties separate, but for some reason, usually financial concerns, neither of them file for divorce.  Time passes, sometimes many years.  Both move on and start other relationships.  The “wife” gets pregnant in a new relationship.  Then comes the big surprise:  her “husband” is the legal father of her new born baby, even though she has not seen him in over two years or longer.  She is unable to list the biological father on the birth certificate.  This causes all sort of drama and friction in her life.

By this point, the legal fix is rather complex.  The wife must file for divorce and to terminate the parental rights of her husband, who is the legal father in South Carolina.  Failure to do that results in a child with a legal father, who is not the child’s father, and a biological father, who is the natural father, but has no legal rights.  This divorce and termination of parental rights action require appointment of a Guardian ad Litem to represent the interests of the baby, even if the matter is not contested.  Additional complexities arise if the whereabouts of the husband are not known.

The better solution is to file for the divorce at the earliest possible time.  For some couples, who have legal grounds for divorce such as adultery, that would be immediately upon separation.  Other possibilities include filing for an Order of Separate Maintenance and then a no fault one year separation divorce after one year.

The lesson is:  do not wait to resolve your legal issues.  Delay typically makes the situation more complicated and more expensive.

If you need to file for divorce on a new separation, or if you have waited way too long, we can help you at Goodwin.  Contact me at: or 864-375-0909.



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