You Are Getting a Divorce. Who Gets the Pet, Though?

When two people decide to marry and share their vows in front of their families and friends, the last thing on their minds is separation or divorce. The spouses already had the tough talks about having or not having kids, practicing religion, get a stance on adoption or abortion, provision of healthcare for them and their families, the kids’ college fund, and so on. They are both on the same page. The wedding is on! Nevertheless, few couples converse (before or during the marriage) about the pets. Every family wants a cat or dog or both, but who gets to keep the pet after the divorce? Here is a gray area in the law, and this is why we need to discuss it.

Pet Ownership and Custody

According to the 2019-2020 National Pet Owners Survey conducted by the American Pet Products Association, around 85 million families across the United States have a pet at home. Most of them contracted pet insurance for their furry friends. People decide where to live depending on their pets, while the pet industry makes billions a year from food, toys, accessories, supplies, over-the-counter medicine, veterinary care, grooming, boarding, walking, and so on.

Saying that pets are essential to any American household is an understatement. For this reason, more and more states realized that the nation was very much behind with pet legislation concerning custody. Going through a divorce with children is an excruciating experience for all parties involved. When it also comes to sole or joint custody, visitation rights, and so on, things can get vicious and heartbreaking. However, in the U.S., like in numerous other civilized countries around the globe, even the nastiest of divorces can yield reasonable results for the kids and their parents.

But what about pets? Since they are not human, current laws treat pets as property. Whose property are they? Who gets to take the dog or the cat when couples divorce? The jury is still out on this one, although progress is at the horizon.

Should You Get a Lawyer to Understand Pet Custody?

Yes. All couples should have an honest conversation about all sorts of things before they tie the knot, including their pets, not only their house, cars, and joint bank account.

Couples should also learn more about legal custody for their future kids and the role the state plays in the splitting of marital property in case of divorce. Talking to an attorney before getting married may take the romance out of the picture, but it brings in a necessary pragmatism. Prenuptial and post-nuptial contracts and agreements can protect valuable assets (like businesses and investment portfolios) while also establishing the best courses of action for the children resulting during the marriage. It is a sensible thing to do when it comes to humans.

Unfortunately, our billion-dollar worthy pets do not get the same fair treatment. In most cases and most places, a couple may go to court and ask a judge to decide on the custody of a pet. Legal reporting noted dozens of contentious custody contests over the pets. Sometimes, spouses fight more for the furry family member than for other assets like cars and houses.

The situation became so dire, since 2017, several states have passed bills that started treating pets more as children than as furniture. New legislation aims to put a pet’s best interest at the crux of a custody arrangement.

So, here are some things to be aware of if your future married life includes a pet in it:

  • Even the most open-minded pet custody legislation only considers pets that fall under the “marital asset” umbrella. It means that your divorce attorney or a state judge can have a say in the pet custody proceedings if you bought, adopted, or rescued the pet together after you got married;
  • In many cases, if one of the spouses owned the pet before entering a romantic relationship, in a divorce case, the pet stays with the original owner. Again, it is not an open-and-shut case, as the other spouse can argue for “joint pet custody” if there is proof that both spouses contributed to the caring of the pet.
  • Just as it happens to children, one spouse can claim or prove he/she offered the pet more care and love, and thus the pet’s best interest is to stay with him/her.
  • Such custody laws do not apply to co-owners who are in familial relationships (siblings) or platonic relationships (roommates).
  • In some cases, the parent who won the sole custody of the children usually gets the pet as well.

Creative Ways to Avoid a Pet Custody Battle

Just as you talk to your attorney about prenuptial agreements, post-nuptial contracts, childcare, the difference between separate property vs. marital property, and more, you should also speak about Pet Custody Agreements.

Such a document is usually a signed contract between the spouses that defines and regulates pet ownership, care, and custody. In this document, both spouses can agree on some of the following aspects:

  • Who the primary owner of the pet is;
  • Whether the pet was a gift from the other spouse or a gift from a third party;
  • How the couple divides the costs for the pet care and wellbeing;
  • Pet custody agreements and visitation schedules in case of a divorce with children (because kids will want the family dog to go with them, especially if the dog came into their lives after they were born), etc.
  • Post-divorce shared custody, weekly scheduled visits, the foods the pet eats in both homes, splitting of vet bills, which spouse takes the pet for which holiday, kids’ time with the pet, and more. We are not kidding; these things exist in law practice.

You should draft such a contract around the time you sign your prenup. Of course, life beats any movie, and things change overnight. Experts recommend you revisit both your prenuptial and pet agreements with your lawyer occasionally to make the necessary adjustments that reflect the reality you live in, not the one you envisioned a decade ago when you said “yes.”

Bottom Line

Fighting over cars and houses is exhausting and soul-shattering as it is. But fighting over kids and pets? Some people left courtrooms in tears or spent hundreds of thousands of dollars in legal fees to contest pet custody in court. It should be more talk about the greater good of the animals we keep. We so affectionately call them family members. We all so proudly call ourselves dog parents or cat parents. However, when push comes to shove, it seems our furry friends belong to all of us or none of us, depending on perspective. What is their best interest? Who is more able to offer them the best of care? It is time for legislators to give us some answers.

If you’re in need of professional help to process your divorce, this article from Regain, https://www.regain.us/advice/general/betterhelp-is-it-the-best-online-therapy-and-counseling-platform-in-2020-and-why/, explores online therapy options.

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