Imagine this situation:

A husband and wife separate in South Carolina. During their separation, the wife becomes pregnant by another man. The couple has now lived apart for more than one year, satisfying the statutory requirement for a no-fault divorce.

The wife wants to finalize her divorce before the baby arrives. She also wants to avoid involving the biological father in her divorce proceedings.

Does South Carolina law require her to wait until childbirth? Or can the Family Court grant her divorce while leaving the question of paternity for another day?

Why Pregnancy Complicates Divorce

South Carolina generally presumes that a child conceived or born during a marriage is the child of the husband.

This presumption can apply even when the spouses have been separated for months or years and everyone agrees that another man is the biological father.

The complication is that biological paternity and legal paternity are not necessarily the same thing.

A DNA test may establish biological parentage, but a court order may still be necessary to resolve legal parentage and determine whose name appears on the birth certificate.

Fortunately, several approaches are worth considering.

Option 1: Obtain the Divorce Now and Reserve Paternity

Under S.C. Code § 20-3-10(5), spouses may obtain a no-fault divorce after living separate and apart for one continuous year without cohabitation.

If that requirement has been satisfied, one possible approach is to ask the Family Court to grant the divorce without deciding the unborn child's paternity.

The proposed divorce decree could expressly state that:

• The parties have satisfied the statutory grounds for divorce.
• The wife is pregnant.
• The court makes no determination concerning the child's biological or legal father.
• Questions of paternity, custody, and child support are reserved for appropriate future proceedings.

This approach would seek to end the marriage without immediately requiring the biological father to participate.

The important distinction: A divorce that leaves paternity undecided is different from a court order declaring that the husband is not the father.

Whether a court will permit this procedure depends on the circumstances and applicable law. It is not a guaranteed right.

Option 2: Explore a Pre-Birth Parentage Order Under South Carolina Regulation 61-19

South Carolina expressly recognizes certain pre-birth parentage orders.

S.C. Code Regs. § 61-19.501(G)(3) provides a procedure for recognizing a court order establishing parentage before a child is born.

Under this regulation, a qualifying pre-birth order may be accepted when issued no more than six months before the expected delivery date. The order must contain specified information, including the expected delivery date, intended hospital, intended parents' identifying information, and findings concerning parental rights.

The purpose is to permit the appropriate parentage information to be recorded when the child is born.

However, there is an important limitation.

This regulation specifically applies to gestational-carrier arrangements, in which a woman carries a child through an assisted-reproduction agreement and is not the intended parent.

It does not expressly apply to an ordinary pregnancy involving a married woman and a biological father other than her husband.

Could an attorney nevertheless argue that the regulation demonstrates South Carolina's recognition of pre-birth parentage orders and ask the Family Court to consider comparable relief in a different situation?

Possibly. But that would be a novel argument, not an established statutory procedure.

Furthermore, S.C. Code § 63-17-10(D) generally stays ordinary paternity proceedings commenced before birth until after delivery, except for service of process and discovery.

Consequently, Regulation 61-19 should not be understood as automatically overriding the paternity statute or allowing a married pregnant woman to obtain a pre-birth birth certificate.

It is an interesting legal avenue to investigate, but one that requires careful consideration of the regulation's limited scope.

Option 3: Use Genetic Testing and a Separate Paternity Action

What if prenatal genetic testing establishes that another man is the biological father?

Such evidence may help resolve the factual question of parentage, but it does not necessarily eliminate the need for a judicial determination.

Under S.C. Code § 63-17-10, paternity proceedings may be initiated before birth, although substantive proceedings generally must await delivery.

Additionally, when a paternity action threatens to make a child legally illegitimate, § 63-17-10(E) requires both the presumed legal father and the putative biological father to be joined. The statute also provides for representation of a minor child by a guardian ad litem.

This creates an important distinction: the biological father may not need to participate in a divorce that does not decide paternity, but he may need to participate in a separate proceeding that does.

However- regulation 61-19.501(H)(1) directs that a spouse be listed as the second parent when the birth mother was married at conception, at birth, or between those events. Thus, obtaining a divorce before childbirth does not, by itself, solve the birth-certificate problem.

Option 4: Wait Until After Delivery

The final option is to postpone the divorce until after the child is born.

At that point, the parties can obtain appropriate genetic testing, pursue a paternity determination, and address the child's birth certificate.

Although this may be the more conventional approach, it can unnecessarily prolong the marriage if the divorce itself could lawfully be granted sooner.

Waiting may be appropriate in some cases, but it should not automatically be assumed to be the only available option.

The Bottom Line: Divorce and Paternity Are Separate Legal Questions

A pregnant woman in South Carolina who has satisfied the statutory requirements for divorce may have grounds to request that her marriage be dissolved before childbirth.

The central question is whether the Family Court can grant the divorce while leaving the unborn child's legal parentage unresolved.

South Carolina's recognition of pre-birth parentage orders under Regulation 61-19 provides an interesting comparison, although its express application is limited to gestational-carrier arrangements.

For a woman who became pregnant during marital separation, the most practical possibility may be to request the divorce now and reserve paternity for later determination.

Disclaimer: This article is intended for general educational purposes and does not constitute legal advice. South Carolina law governing divorce, paternity, and birth records is complex. Individuals facing these circumstances should consult a qualified family law attorney.