Who Gets the Dog in the Divorce?

by Team eLocal
French bulldog with two hands divorce isolated

A pet can be a beloved part of your family. Most people don't want to part with their pets, which means deciding who gets the dog — or cat, or other pet — in a divorce can be a bitterly contested issue in some cases.

If you're facing a divorce, you may have big questions about what will happen to shared pets.

Are Pets Treated as Property by Courts?

Generally, yes, pets are treated as property by courts. While courts will carefully create and enforce custody arrangements for human children, they don't do this for pets. Instead, courts generally treat pets the same as any other personal property, such as jewelry or a vehicle.

However, some jurisdictions are starting to recognize that pets should be treated differently than other property. For example, some states allow pets to be included in petitions for restraining orders.

Who Gets Ownership of the Pet After a Divorce?

Who gets to keep a pet after a divorce depends on which state you're in and the specifics of your situation. Most courts look to the laws that apply to dividing property during a divorce.

If a pet was owned by one spouse before the marriage, that spouse will usually be entitled to keep the pet after a divorce because premarital property is almost always granted to the spouse who brought it into the marriage. The monetary value of an expensive animal, such as a horse or purebred dog, may be considered when the court is dividing property.

However, traditional property considerations aren't always sufficient for determining who should get a pet in the divorce. When spouses dispute who should take the pet, courts may consider factors like:

  • Names on adoption or purchase documents
  • Who was primarily responsible for day-to-day pet care
  • Receipts for vet care
  • Municipal or county registration
  • Microchip records

Although a pet acquired during a marriage is likely to be considered marital property, a judge may try to award the animal to the spouse who provided the majority of its care. Service animals are almost always awarded to the spouse who needs the service.

Can Visitation Rights Be Awarded?

Most courts won't order spouses to share a vehicle or television, and the same goes for pets. Each item of property is awarded to one spouse, and those orders are final. Spouses can agree to share custody of a pet, but it can be difficult to get courts to enforce these agreements.

However, there may be a growing trend toward treating pets differently than other property. For example, Illinois law started allowing parties to petition for shared possession of pets and even considers the well-being of the companion animal.

Could You Sue for Ownership?

Suing a spouse for ownership of a pet may not be possible because courts expect property disputes to be handled as part of a divorce case. It's possible to sue another person over pet ownership. That person could be a significant other to whom you weren't married or someone you weren't in a romantic relationship with at all.

In these cases, courts tend to look at some of the same evidence considered when awarding a pet in a divorce. Who is listed on veterinary and ownership records? Which name appears in microchip databases or local animal registration records?

Can Pet Custody Be Part of a Prenup Agreement?

Because courts usually treat pets as personal property, pets can be included in a prenup agreement. Prenuptial agreements can be used to clarify that each spouse will retain ownership of pets they brought into the marriage. A prenup could potentially even declare that one spouse would be entitled to any dogs the couple owns in the event of a divorce.

As with other agreements, terms regarding shared custody of pets after a divorce could be more difficult to enforce. Some states include pets in domestic violence statutes, and it's possible that these laws could override a prenup.

How Does This Vary State to State?

Although most states still treat pets like any other property, leaving pet parents with limited legal options, there is a growing trend to update these laws. In addition to the Illinois law allowing for joint pet custody, at least one Rhode Island court granted a divorced spouse visitation with the couple's dogs. California law permits a judge to make orders regarding the care of an animal while a divorce is pending.

Some states fall somewhere in between. For example, some have recognized that abusive spouses may harm an animal or use the animal to control the other spouse. These states have attempted to address such situations, for example, by allowing pets to be included in protection orders.

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