Question: My wife and I separated many years ago. Can I not get divorced now as she has a child with her new partner?
You should still be able to get divorced, but it may be delayed for an official determination that the newer child belongs to a different father.
Under Washington law, the court presumes that a child born while a marriage is intact (not legally dissolved), will have the husband as the legal father – even if the real father is someone else. So in a divorce, this child would automatically be considered part of the marriage and subject to having a parenting plan and child support set. This presumption must be rebutted or disproven, to remove the child from being considered a child of the marriage. There are two ways to do this: 1) by using a paternity acknowledgment if one has not been done previously; or 2) by bringing a parentage case. Under the first option, if the mother along with the real father sign a paternity acknowledgment (the long legal form with notary section, that is often presented by hospital staff when a child is born to an unmarried mother), the divorce generally can move forward without this child being part of it.
If the real father refuses to sign this paternity document, or if he cannot be located, things get more complicated. A parentage (sometimes called ‘paternity’) court case may have to be started, with a request that genetic testing be ordered, possibly to at least exclude the husband as the legal father. It is much easier if the paternity court case is filed before the child reaches the age of two. If the child is age 2-4, time is limited and a special investigator, or Guardian Ad Litem (GAL), must be appointed to make recommendation to the Court on behalf of the child. Sometimes if the ‘step-father’ has been very involved with the child, especially during the first two years of life, and has openly referred to the child as his own, the GAL may be reluctant to recommend to the Court that the testing even be conducted or admitted as evidence. The theory is, that under the eyes of the law, the child may be better of having the wrong father, than no father at all. If this happens, the husband may not be able to exclude the child from the divorce case – even if everyone knows that he is not the real father, and the child would therefore be included in a parenting plan and order of child support.
The law is complicated and changing, and this is only a partial and incomplete summary. Always consult a lawyer.