Who gets custody of a pet in a divorce?

Who gets the much beloved family pet can be difficult to resolve in a divorce. Many owners consider their pets members of their family and pet custody can become as emotionally charged as child custody. Despite their emotional appeal, pets are actually considered personal property under the law. It is much better for the divorcing couple to agree on how to handle custody of the beloved pet, because if they don’t, a court will decide for them.

It’s common to treat pets as family: dog owners, for example, may call themselves “pet parents,” or call their dogs their “furry children.” And certainly, no one who has ever experienced a pet’s love doubts its value, strength, or sincerity. Many people wish their spouses or children would love them as unhesitatingly and unreservedly as their pets do.

But in the eyes of the law, no matter how much you love your pet or how much your pet is part of the family, your pet is personal property, no different (legally) from your car, your TV, or your sofa. Quite simply, pets are not people, no matter what their human families think, and so in a divorce, they are treated the same way jewelry, art, or furniture are treated, and not the way children are.

Because pets are property, the soon-to-be-former spouses are free to come to any agreement between themselves as who gets the pet(s), the same way they could decide who gets the house or the car. If the divorcing spouses can come to a written agreement about the pet(s), the courts will enforce it. This is the best outcome, since a voluntary agreement is more likely to satisfy (at least partially) both spouses, where if the court decides, it is likely that one person will be bitterly disappointed.

If the spouses cannot agree voluntarily as to what to do, if the pet predates the marriage, it will go with the person who had owned it pre-marriage – the same way he or she can keep any real estate or other assets purchased or acquired before marriage. Or if the pet was a gift from one of the spouse’s families only to that spouse (and not to the couple jointly), the pet will go to that person — the same way other gifts specifically to one spouse go to him or her in a divorce.

But if the pet was jointly purchased by the two spouses (or gifted to them jointly) and they cannot voluntarily decide who gets the pet, the court will have to decide. In doing this, the court will try to be fair. For example, if there are an even number of pets (e.g., two cats), a spouse may get one. Or if one spouse has a demonstrably greater need for the animal (e.g., it is not just a pet, but also a service or emotional support animal for one person), that spouse will likely get it. Or if there are children, the spouse who gets primary custody will probably get the pet(s), too, to avoid separating children from their family pet. Practical considerations will also be considered: for example, a big dog may go to the spouse who will live in the country, not the one who will move to a city, because a big dog needs space. The court will look for some basis (which may not be easy to find or determine) to fairly and appropriately decide with whom the animal(s) will live.

Case Studies: Pet Custody in Divorce

Case Study 1: The Voluntary Agreement

John and Emily, a divorcing couple, owned a lovable Labrador Retriever named Max. Recognizing the emotional bond they both had with Max, they decided to reach a voluntary agreement regarding pet custody.

Through open communication and consideration for each other’s feelings, they came to a written agreement that granted joint custody of Max. They agreed to a schedule where Max would spend weekdays with John and weekends with Emily. This arrangement allowed both parties to maintain a meaningful connection with their beloved pet.

Case Study 2: Pre-Marriage Ownership

In Michael and Sarah’s divorce, they faced a dispute over the custody of their two cats, Whiskers and Mittens. Sarah had owned both cats before their marriage, and they were exclusively her pets.

Since the pets were pre-marital assets, the court determined that Sarah would retain custody of Whiskers and Mittens. This decision was consistent with how other personal property acquired before the marriage was handled in the divorce settlement.

Case Study 3: Demonstrable Need and Practical Considerations

David and Lisa had a Great Dane named Duke, which they had jointly purchased during their marriage. When they couldn’t agree on pet custody, the court had to intervene.

After considering various factors, the court determined that Lisa, who relied on Duke as a certified emotional support animal, had a demonstrable need for his companionship. Additionally, the court took into account that Lisa planned to live in a rural area with ample space for Duke’s needs. As a result, the court granted Lisa primary custody of Duke.