Do Not List These Kids When Filing for Divorce — Santa Clarita Divorce
Who counts as a child in a divorce?
When you file for divorce, the court only considers the minor children of the marriage. That means the children must be born to both spouses. To put it plainly:
the only minor children that will be a part of your divorce are children born to both of you not just one of you
If a child is biologically related to or legally parented by only one spouse — for example, a child from a prior relationship — that child is generally not automatically part of the divorce case.
Why this distinction matters
Whether a child is legally part of the marital household affects several things the court can decide:
- Custody and visitation: Courts make custody orders only for children of the marriage unless a separate action is filed.
- Child support: Support orders are entered for the children of the marriage. Financial obligations for children from prior relationships typically remain with their biological parent unless a court order says otherwise.
- Parenting plans: A custody/parenting plan drawn up in the divorce will only govern children who are part of that divorce case.
Common scenarios and what they mean
Child born during the marriage
If a child is born while you are married, the law usually presumes both spouses are the parents. That child will be part of the divorce unless paternity is later challenged or disproven.
Children from a prior relationship
Children who belong to only one spouse are not automatically included. That does not mean the other spouse cannot be involved in their lives, but custody, visitation, and support for those children require separate legal steps where necessary.
Stepchildren
A stepparent is not a legal parent simply by marriage. If the stepparent has adopted the child, the child becomes part of the marriage for divorce purposes. If not, the divorce will not resolve custody or child support for that stepchild.
Paternity issues
If paternity is unclear or being challenged, the court may require DNA testing or a separate paternity action. Until parentage is legally established, the child may or may not be treated as a child of the marriage.
What to do when preparing divorce paperwork
- Identify which children are legally of the marriage. Check birth certificates and any prior court orders or adoption records.
- List only children who are legally the children of both spouses. Including children who are not legally part of the marriage can create confusion and unnecessary complications.
- Plan for children from prior relationships. Their needs remain important. Address them through private agreements, separate court actions if needed, or by negotiating how household finances will be divided so those responsibilities are acknowledged.
- Consider paternity or adoption if you want legal rights or obligations. If you want custody rights for a child not currently recognized as yours, you may need to pursue adoption or establish legal parentage.
- Talk to a family law attorney. Rules vary by state and specific situations can change the outcome. An attorney can help you identify which children should be listed and advise on the best legal path.
Mistakes to avoid
- Do not assume a stepparent is legally responsible for a stepchild unless adoption or another legal obligation exists.
- Do not list children from prior relationships as children of the marriage on your divorce forms; that can create jurisdictional and legal confusion.
- Do not use divorce as a shortcut to gain custody of a child who is not legally yours; proper legal steps are required.
Final thoughts
The simple rule to remember is this: the court handles custody and support for the children who are legally children of both spouses. Children who belong to only one spouse are treated differently and usually require separate legal actions to change parentage, custody, or support obligations. Knowing which kids to list when filing can save time, reduce conflict, and keep the focus on what the court can actually decide.
