Divorce laws have not caught up with marriage laws in most states. While same-sex marriage is legal in all areas, many laws regarding divorce are focused on heterosexual relationships. This can lead to complications for same-sex couples.
According to the University of California, besides the length of the relationship, the custody of children is the biggest issue in a same-sex divorce. The legal rights of the parents depend largely on the situation.
Potential parenting rights
The biggest rights issues occur when a child is the natural child of one of the spouses, which would provide that spouse with automatic parental rights. The other spouse would have no rights unless he or she adopts the child.
For couples who adopt, there should be no parental rights issues since both people must adopt the child, which will give them both legal rights.
If you are a parent of a child that is not biologically yours and you did not go through the adoption process, you could face issues when you divorce. The child’s biological parent would have all the rights to the child under the law.
In a heterosexual marriage, this problem usually does not occur. The reason is that when the wife in a married couple gives birth to a child, the law says the husband is automatically the father. He gains parental rights instantly.
This is not how it works for same-sex couples. If your wife gives birth, she is the mother. The law has no allowance for automatically allowing you to be the mother as well, and it will not recognize you in the traditional father role.
There is a great need for divorce and paternity laws to catch up with marriage laws in order to prevent these issues with same-sex families in divorce.