How Do I Modify a Divorce Decree Based on Learning I Am Pregnant?

Full question:

I am a 35 year old pregnant women who feels that I signed the divorce papers under under severe duress albeit abuse. As such, I need a modification to my divorce decree which was filed at the Hall of records in San Francisco. At the time my Husband filed and he did not give me a copy. This was done in the month May of '09. At the time he assured me that he would assist me financially 'until I got on my feet' A month later i discovered that I am pregnant. On 8/26/09 I had an amniocentesis done. I am now 17 weeks pregnant. My ex-husband is refusing to give me any money at all and now he's denying that its his child.I have a part time job in Larkspur and I'm not able to make ends meet. He has a very well paying job making upwards of $375K plus bonus' per year, In Santa Clara. I just found out that he cashed our 401K and has bought a house. He's refusing to give me any support and the amino will prove his paternity. My question is can i get him to pay me support now. since he was unwilling to provide a DNA sample is there some way to compel him to do so now? Anything I can do to expedite matters.

• Category: Divorce
• Subcategory: Modification
• Date: 04/07/2025
• State: California

Answer:

When a divorce decree is issued by a court, that court retains jurisdiction to modify its order. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. Certain aspects of the decree are modifiable, while others are not. The property division is not modifiable by the court. It is final. Child custody may be modified if there is a significant change of circumstances. The court's decision to grant a modification is based on the best interests of the child.

A man is presumed to be the father if he has been married to the mother for a certain time before the child is born. That presumption may be rebutted by clear and convincing standards of evidence, such as a DNA test. A man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father. If a biological father is determined to be a man not married to the mother, that man may be ordered to have visitation rights, as well as other obligations.

Once paternity has been established, a father has the right to seek custody of or visitation with his child. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. A custody agreement between the parents or a court order can clarify custody and visitation issues. Unmarried parents without custody are entitled to the same visitation rights as divorced parents, absent extraordinary factors such as abuse or domestic violence. Adoption by the husband might be possible with the biological father's consent.

Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for child support. State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.

In most states, a paternity action takes the form of a civil lawsuit. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need. An action for paternity may be filed by the child.

A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will all be tested at a court-designated facility. A court determination of paternity is final, and a copy of the court's order will be needed to establish the child's rights, both present and future.

The following are CA statutes:

7611. A man is presumed to be the natural father of a child if he
meets the conditions provided in Chapter 1 (commencing with Section
7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any
of the following subdivisions:
(a) He and the child's natural mother are or have been married to
each other and the child is born during the marriage, or within 300
days after the marriage is terminated by death, annulment,
declaration of invalidity, or divorce, or after a judgment of
separation is entered by a court.
(b) Before the child's birth, he and the child's natural mother
have attempted to marry each other by a marriage solemnized in
apparent compliance with law, although the attempted marriage is or
could be declared invalid, and either of the following is true:
(1) If the attempted marriage could be declared invalid only by a
court, the child is born during the attempted marriage, or within 300
days after its termination by death, annulment, declaration of
invalidity, or divorce.
(2) If the attempted marriage is invalid without a court order,
the child is born within 300 days after the termination of
cohabitation.
(c) After the child's birth, he and the child's natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the attempted
marriage is or could be declared invalid, and either of the following
is true:
(1) With his consent, he is named as the child's father on the
child's birth certificate.
(2) He is obligated to support the child under a written voluntary
promise or by court order.
(d) He receives the child into his home and openly holds out the
child as his natural child.
(e) If the child was born and resides in a nation with which the
United States engages in an Orderly Departure Program or successor
program, he acknowledges that he is the child's father in a
declaration under penalty of perjury, as specified in Section 2015.5
of the Code of Civil Procedure. This subdivision shall remain in
effect only until January 1, 1997, and on that date shall become
inoperative.
(f) The child is in utero after the death of the decedent and the
conditions set forth in Section 249.5 of the Probate Code are
satisfied.

§7612:

(a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.

(b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.

(c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.

See also:

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=07001-08000&file=7610-7614