How is Pet Custody Determined in a Divorce?

Breaking up is hard to do, and it only gets harder when there are other living things involved. Of course, the most difficult and devastating third party to have pulled into a divorce (or a split of any kind, for that matter) is a child. But, for couples who don't share human babies, sometimes the hardest part of breaking up is figuring out who gets custody of the furbaby. And if you can't come to an agreement? Well, then things get tricky. Here's how custody of a pet is determined in a divorce.

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Are couples actually fighting over custody of their pets when they split?

The short answer: Absolutely.

In a poll of 1,500 members of the American Academy of Matrimonial Lawyers, nearly 25 percent said they had noticed an increase in pet custody disputes. Some research has shown that 38 percent of divorcing couples who share a pet fight over custody as they separate. And, when couples can't come to an arrangement on their own, judges have had to step in to decide custody and even rule on visitation rights (or lack thereof).

Who legally has rights to custody of a pet in a divorce?

If the pet was purchased by one member of the couple before the union, then, traditionally speaking, the pet would be considered a pre-marital asset and ownership would revert to the original pet parent. If the pet was purchased after the marriage (making it a joint asset—as weird as it is to think of a living, breathing, cuddling thing as an "asset"), things get more complicated, but, historically speaking, the pet would still be treated like property to be divided up, just like your china dishes or living room furniture.

Do courts consider the animal's needs when deciding pet custody disputes?

In the past, the answer was a big fat nope—but that's changing as people across the system fight to have pets treated more like children than like property. In fact, several states have recently passed bills that shift the focus to the pet's best interest when determining custody.

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Alaska led the charge here, becoming the first state in the U.S. to pass custody legislation specifically for pets. The Alaskan law went into effect in January 2017 and, since its passage, other states, including Rhode Island, Wisconsin, and Illinois, are considering similar laws.

Under what circumstances will the courts step in to decide pet custody cases?

Relationship difficulties
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Even though courts are becoming more open to stepping in to handle pet custody cases, there are limits. If the pet was purchased/rescued/adopted/etc. by one member of the couple before the marriage, custody will still almost certainly revert to that person (although, if the other partner has done significant work in helping care for the animal, the courts might be persuaded to order visitation rights). The courts are also not going to step in if the custody dispute is between platonic couples (like roommates) or relatives (like if you shared a pet with a sibling, for example).

What can I do to protect myself (and my pet) if I'm sharing custody with a parter or spouse?

If you decide to get a pet with another person (particularly with a romantic partner, but this could also extend to platonic co-pet-parents), lawyers and legal experts strongly recommend that you draw up a Pet Agreement. Think of it as a prenup for your pet.

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In a pet agreement, you would work with your partner to layout the terms of your shared custody (you should do this before you split, so the decisions are being made with the animal's true best interests at heart, without any complicated breakup feels muddying the waters). These contracts can be used to establish visitation schedules, primary pet ownership, how care costs will be handled in the event of a breakup and who has final say in medical decisions, just to name a few.

What factors should determine who gets custody of a pet during a divorce?

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When love isn't going to be the tiebreaker (because you both love your pup equally, of course), there are some factors that can tip the scales in one party's favor, from the perspective of the pet's well-being. Some factors that you should take into considering when determining pet custody include:

Who is moving?

Animals don't do well with change and the divorce is already a huge change. If one pet parent is keeping the house or apartment that the animal is used to, that could be the best parent for primary custody, all else being equal.

Are there kids involved?

If there are human kids involved in the split too, some experts say the pet should go where the kids go—assuming the kids and the animal like each other. Since it's a big time of upheaval for both the kids and the pet, having each other can help ease the transition.

What are your schedules like?

If one member of the couple works insane, 80-hour weeks and the other freelances from home or works a reliable 9-5, that could be important to consider. Pets need time and attention as well as love and treats and toys, so if one party has the time to dedicate to the animal and the other doesn't, that could be an important factor.