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.