How to Decide Who Gets the Pet in a Divorce

More than 70 million U.S. households have pets and these owners spend a tremendous amount of resources on the care and comfort of their pets. As more than half of all marriages end in divorce, many divorcing couples are faced with deciding who gets custody of the pet. While there is some disagreement under the law as to how pets should be considered, there are steps that you can take to evaluate what custody arrangement would be best for your pet and for making a strong argument for custody in a divorce hearing. When you do determine who gets the pets you'll need to transfer pet ownership.

Part 1

Part 1 of 3:

Evaluating Legal Right to Pet

Under the law, pets are viewed as personal property that should be assigned to one party or the other. However, more and more courts are looking more closely at the issue of pet custody. While some courts refuse to enforce visitation agreements between divorced pet owners, other courts have asked divorcing couples to submit custody plans that would be in the best interest of the animal. Therefore, while pets are viewed as property, you may be able to negotiate a legally binding agreement as to custody.^{[1]XResearch source}
2
Determine purchaser. Since pets are considered property, if you can show that you purchased the animal prior to the marriage or used non-marital funds to buy the pet, you may have a better chance of keeping the pet in the divorce.
- However, if you did not provide primary care for the pet during marriage or pay for its care, you may be required to reimburse your spouse for the cost of care if you are awarded the pet.^{[2]XResearch source}
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In determining ownership interest of the pet or where the pet should be placed in a division of assets, the spouse who maintains custody of the pet during the divorce proceeding may have an advantage over the other spouse. Having custody of the pet may be seen as evidence of the animal’s actual caretaker and the court may factor this into its decision about who should have custody of the pet.^{[3]XResearch source}
4
Evaluate prenuptial and postnuptial agreements. Since a pet is legally considered property, a prenuptial or postnuptial agreement may speak to pet ownership. For example, if you brought the pet into the relationship, listed the pet as your property in a prenuptial agreement, and your fiancée signed the agreement, you will most likely maintain custody of the pet.
- If you acquired the pet during your marriage and then you and your spouse sign postnuptial agreements, review the agreement to see whether you or your spouse agreed that the pet was one person’s personal property.^{[4]XResearch source}
- Evaluate whether there is broad enough language in the postnuptial agreement to make an argument that the pet falls into a class of property that was agreed to be your personal property.
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Part 2

Part 2 of 3:

Considering Best Interest of the Pet

1
Pair pet custody with children. If you have children, in addition to a pet, it may be in the best interest of the children and the pet to keep them together. This generally means that the pet stays in the family home, in its familiar setting.
- If you have more than one pet and the pets have bonded, it is probably in the best interest of both pets to keep them together.
- If child custody is shared, you could also share pet custody on the same schedule. However, certain animals like dogs may be more suited to this arrangement.^{[5]XResearch source}
2
Evaluate spouses’ schedules and homes. If both parties are truly concerned about the well being of the pet, they should look at both spouses’ schedules and see whether one is better for providing the pet with a healthy environment. Factors to consider when determining whose schedule and housing may be best for a pet include:
- Does one person travel a lot for work?
- Who has a more predictable schedule?
- Who has a shorter workday?
- Are both people living in places where pets are allowed?
- Does one person have more outdoor space for the pet?
- Is one person more able to take care of the pet, because of work schedule?^{[6]XResearch source}
3
Think about the health of the pet. Just as people suffer from the stress of a divorce, pets also can experience stress and illness from the changes in surroundings and care. If the pet is living in a new environment or with the spouse that was not the primary caretaker, consider taking the pet to the veterinarian if you notice changes in its behavior, such as loss of appetite, self-biting or accidents in the home.
- You can ask the vet what type of environment would be best for the pet and how to maintain the pet’s health.
- You can also consider that it may best if the pet lives with the spouse who was the primary caretaker.^{[7]XResearch source}
4
Consider sharing custody. While pets tend to thrive in consistent environments with predictable schedules, if both you and your spouse agree that you can maintain a stable environment for the pet, you can set up a custody agreement.
- For the sake of the pet, it may be best not to exchange the pet on a weekly basis but rather a monthly or bi-monthly basis.
- If one person works from home, they may be better suited for custody during the week versus a spouse who has more time on the weekends.
- You should decide in advance who will be responsible for pet-related expenses, particularly for emergency or veterinary care.
- You should also consider that certain pets, like cats, thrive in familiar environments and may not be well suited for shared custody.
5
Try mediation. You should consider hiring a mediator if you and your spouse are having difficulty negotiating pet custody or you do not want the judge in a divorce proceeding to decide. A mediator is an independent person who can help parties in a divorce negotiate the terms of pet custody. The mediator may also be able to help two people who equally love their pet determine what custody arrangement would be best for the animal.
- A mediator may suggest that whichever party agrees not to take custody of the pet, should then be given enough money to buy a pet of the same breed and type of the one they are giving up.
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Part 3

Part 3 of 3:

Making a Legal Argument for Pet Custody

1
Evaluate your spouse’s motives. If your spouse never cared for the pet but is vehemently arguing for pet custody during the divorce, you and your attorney should evaluate your spouse’s motivations.
- Your spouse may be using the pet to get a more favorable division of property.
- Your spouse may be using the pet as a way to exert control over you.
- If you were the victim of domestic abuse, the abuser may want to use custody of the pet as a demonstration of power or even as an unstated threat against the animal.
- It is important for you and/or your attorney to carefully craft a legal argument and present evidence that shows the pet is being used for manipulation and that your spouse is not the best caretaker for the animal.^{[8]XResearch source}
2
Provide evidence of pet care. If the pet was purchased during the marriage with marital funds, then the pet will be seen as the property of you and your spouse. However, if you can demonstrate that you were the primary caretaker for the pet, this may provide you an advantage when the court decides who should get the pet in the divorce. Evidence of pet care may include:
- Letters from your pet’s veterinarian about the care that you provide and that you are the person who primarily brings the animal in for wellness visits.
- Letters from neighbors or people at the dog park who can attest to your care and treatment of the animal.
- Evidence that your schedule permits you to spend more time with the pet.^{[9]XResearch source}
As discussed above, if you have maintained custody of the pet during the separation and divorce proceeding, you should present this as evidence for the judge. The court may find your current custody of the pet as evidence that you are truly the primary caretaker of the pet.
4
Show financial ability to support the pet. If your income is such that you can easily provide the pet with medical treatment, food, a dog walker or any other services for the pet, you should make this argument to the court. Since a pet is considered property, a court is not going to require a spouse to pay pet support to the other spouse. When gathering evidence for the court, you should include:
- Receipts for veterinary care, pet food, and grooming supplies.
- A plan for pet care if you are hurt or sick.
- Your most recent pay stub; although the court will most likely have all of your financial information unless the pet is the only disagreement in the divorce.
- Any other documentation regarding the cost of care and maintenance of your pet.^{[10]XResearch source}
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Tips

In gathering evidence to show the judge that you are the best person for caring for the pet, include a letter from the vet; character references from family, friends, and neighbors; and references from any pet services you use, such as dog grooming.
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Provide the judge a list of bills from services that you have arranged for your pet to have during the marriage
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Consider creating a photo collage of your relationship with your pet, with commentary about special events, etc.
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Things You'll Need

Documented evidence of your close relationship with the pet and how the pet will suffer if separated from you.
Ability to set aside your anger/distress and put the pet's needs first.
A good lawyer, mediator or counselor; even the vet might be able to help!