Having Children Outside of a Marriage

It is not required for two people to be “legally” separated in Illinois in order for them to pursue other relationships. This can happen while a divorce is pending, or while parties are otherwise estranged. Illinois is a no fault state, so other than the risk of dissipation of assets, for the most part, Judges in Illinois are not going to look at relationships outside of the marriage as a basis for dividing property. (Of course, someone who cohabits on a continuing, conjugal basis with another person wouldn’t be a maintenance candidate, either, but that is for another post.)


So, since people are free to have relationships prior to their divorce being finalized, presumably, sometimes children are conceived. There are specific repercussions as a result of same. For one thing, if you are married and trying to obtain a divorce and one of the spouses becomes pregnant, most Judges won’t dissolve the marriage until after the child is born. That is because there is a rebuttable presumption that a child born to two parties during the marriage is a child of the marriage, and the Judge has to allocate parental responsibilities, support and parenting time for any child of the marriage. The other issue, on the other hand, is that the biological parent of the child must take certain steps before being able to establish paternity. One of the issue with trying to establish paternity of a child who is born to a married person is that the biological parent has to serve notice upon the pregnant parties’ spouse of the proceedings. This is because the child is presumed to be of the marriage, so the spouse of the pregnant party has an opportunity to intervene if they believe they may be the biological parent.


In dealing with these complicated issues, all results and cases are different. Thus, it is best to consult an attorney as to your rights and obligations, and our firm routinely deals with these and similar issues.

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