Does a divorce raise questions on the legitimacy of a child in womb?

Full question:

I want to move a divorce action against my husband in New York. But I am three months pregnant. Does a divorce raise questions on the legitimacy of my child?

• Category: Divorce
• Date: 04/07/2025
• State: New York

Answer:

In New York, when a divorce action is initiated by the wife, the legitimacy of any child of the parties born or begotten before such action was started is not affected by that divorce action. On the other hand, when a divorce action is initiated by the husband, the legitimacy of one child born or begotten before the action was started is not affected by that divorce judgment. However, the legitimacy of any other child of the wife may be raised as an issue in divorce action. But absent any proof, all children are presumed to be legitimate.

This is given under NY CLS Dom Rel § 175, which reads:
 

1. Where the action for divorce is brought by the wife, the legitimacy of any child of the parties, born or begotten before the commencement of the action, is not affected by the judgment dissolving the marriage.
 
2. Where the action for divorce is brought by the husband, the legitimacy of a child born or begotten before the commission of the offense charged is not affected by a judgment dissolving the marriage; but the legitimacy of any other child of the wife may be determined as one of the issues in the action. In the absence of proof to the contrary, the legitimacy of all the children begotten before the commencement of the action must be presumed.
 

Here, the legitimacy of a child would not be affected by the divorce judgment upon an action initiated by the wife when she was conceiving by three months.