Yo dog! Who gets the family pet in a divorce?

who gets the pets in a divorce

You buy them lots of toys, take them for play dates in the park, let them ride shotgun when you’re running errands and have long talks with them about the meaning of life.

But it’s not your children we’re talking about here…it’s your family pet.

That means when a marriage goes bad a family pet can become the center of a divorce dispute rivaling child custody disputes.

What complicates this is that in most all states, pets are only considered personal property and are “divided” like other community/marital property such as a car or a home.

Technically, courts are only supposed to consider the ownership and monetary value of a dog, cat, parrot, snake, lizard or any other companion.

However, many owners don’t think this way and its backed by research that shows almost 40% of dog owners in a divorce did not want to give up their favorite four-legged friend.

But because pets are often loved and treated as family members, custody of the family pet can lead to some heated disagreements in the course of a divorce.

At times, couples may be able to work out a pet custody and visitation schedule as part of a division of assets.

But when that’s not possible, a judge will make the final decision and take the possibility of compromise out of the spouse’s hands.

Considerations for the good of your pet and the good of your family

Considerations for the good of your pet

Pets can endure stress in a break-up just like any other family member.  You really should take their well-being into account which may be difficult when everything else is coming at both of you.

To avoid further and unneeded conflict, here are some things to consider when making decisions about your pet during divorce:

The move factor.  Pets don’t do well with big changes and moving a pet in the midst of stressful times can turn your doggo or cat into a nervous mess.

If one of you is staying in the family home, at least for the time being, consider that it might be the best place for your pet until other details can be worked out.

The kid factor.  Don’t forget that kids can be super bonded to a pet, especially when mom and dad are arguing.

Taking away a pet during separation or divorce can also do damage to a child’s psyche as well as the animal mental state.  It’s simple enough to have the pet come along with the child when weekend visits are taking place.

The work factor.  If you’re the one who’s gone from sun up to sun down, you need to give that some serious thought as to whether or not that kind of schedule is fair to your pet.

Pets need attention or you could come home to a trashed house as fido shows his disapproval.  Your pet needs to be where they can get the most love and attention.

The split-up factor.  If you have more than one pet, you may think each one of you can get an animal and everything will be hunky dory.

But not so fast…

If the pets are emotionally attached to each other, splitting them up could also harm them more than the compromise that puts your best interests first.

The spite factor.  Do you really want the family pet or are you using it as a way to inflict pain on your spouse?

This is not the time to do that when a life is involved.

Step up and do the right thing when it comes to your pet and pick a different place to inflict pain if that’s part of your agenda (and we hope it’s not!).

California’s Assembly Bill 2274

As it is with so many other things, California is one of a handful of states leading divorcing pet owners into a new era with the recent passage of Assembly Bill 2274.

Authored by Assemblyman Bill Quirk, (D-Hayward), it is designed to make sure the care of a pet is taken into consideration during and after a divorce is made official.  California joins Alaska and Illinois who have already adopted similar measures.

Alaska became the first American state in January 2017 to enact custody legislation specifically for pets, allowing courts to take an animal’s well-being into account during divorce proceedings. The act actually describes a pet as a “vertebrate living creature not a human being” rather than a piece of property.

A 2014 survey by the American Academy of Matrimonial Lawyers showed a 22% increase in pet custody hearings in court. Many divorce attorneys also point out that often a spouse attempts to use the animal as a bargaining chip in divorce proceedings.

Prior to passage of AB-2274, state law was somewhat vague but viewed pets as property to be argued over much like the family home when dividing assets.

Because California is a community property state, any community property acquired during the course of the marriage is owned equally and would be divided equally among divorcing spouses.  Pets could end up with one of the spouses, with an offset for 1/2 the value (usually not much unless we’re talking about a thoroughbred  race horse or something along those lines). Occasionally, pet visitation rights were also established.

Under the new law, rather than being treated as a property item to be divided, the well-being of family pets will be given prime consideration.  The new law went into effect on January 1, 2019.

Much like when arguing over the custody of a child, a spouse can now petition the court for sole or joint ownership/custody of the pet based on providing care to the pet.

The law specifically stipulates this will include “prevention of acts of harm or cruelty” and “the provision of food, water, veterinary care and safe and protected shelter.”

The law also now allows for one person in the divorce to request an order that would require one person in the marriage to care for the pet prior to the divorce becoming final.

For example, if one spouse moves out and the other spouse stays in the family home during the divorce proceedings, the spouse who moved out can request that the family pet not be given away until ownership is decided as part of the divorce settlement.

Supporters of AB 2274 included the American Society for the Prevention of Cruelty to Animals and the San Diego Humane Society.

But the bill was not without its critics.

The Association of Certified Family Law Specialists was opposed saying that contested divorces already face major court delays, especially when it comes to children.

“By adding in sole or joint ownership of pet animals as a determination courts can make in divorce proceedings, the already backlogged family court proceedings may become even more delayed as judges consider the myriad factors that come into play when making decisions about community property, division and child custody,” says an explanation of the legal group’s position.

Creating a pet custody agreement may be an option

Pet custody

While the laws are slowly changing, the vast majority of states have not dealt with the issue of pet custody beyond defining a pet as an asset.

Couples need to consider if they are willing to give a judge the power of deciding how their pet is “divided” in a division of assets.  A better option may be to try and reach an agreement on your own.

Creating a Pet Agreement gives you control beyond what the law or a judge says.  You can decide visitation schedules, expenses for things like vet visits, toys, food, litter and so forth, as well as who should be the primary custodian of the pet.

Doing this in advance is also one less bone of contention you’ll have to face that could cost you money if it’s one of the things a lawyer needs to negotiate for you.

Remember that if you are both hardcore about maintaining ownership of your pet, you’ll need to produce vet bills and receipts, witnesses who can testify as to who is closer to the pet, loving photos, and details of your work and home schedules so that the best interests of the pet can be considered by a neutral third party.

How about a poochie prenup?

You may laugh at the idea, but if you enter a marriage while you’re already in a relationship with your pet, there’s no sense in risking the loss of your little buddy if the marriage doesn’t work out.

Yes, the conversation might be a little awkward, but just like many other things in life, an ounce of prevention can be worth a pound of heartache later on.

You can also initiate a pet prenup agreement (or postnuptial agreement) for an animal that you acquired together.

Consider which spouse works longer and is gone more often, which owner the pet favors and is bonded to, and other factors that may lead you both to a practical solution.

If you’d like to keep things less formal, you can come to some kind of verbal agreement.  But it also never hurts to get something in writing before the dog poop hits the fan.

Unleashing some final thoughts

Final thoughts

In a vast majority of divorce cases where children are involved, the custody of the dog is usually awarded to the parent who also has primary custody of the children.

But many couples who fight over pet custody are older, with children who have grown and the pets in their lives are extremely important for companionship purposes.

Keep in mind that when a pet is considered property by the courts, if there is a dispute, the animal can be sold and the proceeds from the sale split between the two parties.

More than likely when a judge threatens this, it’s only to spur a couple to quit wasting time and reach an equitable agreement regarding their pets.

But keep in mind, in states where a pet is considered personal property, even if the judge personally has feelings toward the pet, the law says that they can’t care in reaching decisions.

There have also been a few cases where custody of the family pet played a role in determining alimony payments.

Further complicating pet custody issues are when one spouse or the other registers or identifies a pet as an emotional support animal.

Some courts may see this as a ruse, but that doesn’t prevent this type of strategy being played out and can lead to some very interesting exchanges in a court of law.

Looking for more divorce tips? Here are a few of our favorite guides and resources:

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