What Happens to the Family Pet in a Divorce Case?

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Divorce tends to focus on children, child support, spousal maintenance, the division of property, and the allocation of debt. But increasingly who gets the family pet has become a big litigation issue. Pet owners often consider their dog, cat, or other pet companion an essential part of the family. Given this, the fact that custody arrangements for the family pet can become a contentious issue during a divorce is not surprising. In fact, the issue of pet custody affects many divorcing couples here in Missouri each year. Moreover, some divorcing spouses believe dealing with what happens to the family dog is more stressful than the issue of child custody. Spouses who spend thousands a year on their pets are willing to spend thousands to keep those pets after divorce.

So what could happen to your beloved animal family member when you are facing divorce? During such a difficult emotional time, it is important to be prepared for what could happen so you can achieve a more favorable outcome for yourself and your pet. Here are some of the key considerations and possible outcomes if you are divorcing and worried about your pet.

Generally, the law has treated pets as property, no different than a dining room table. But as pets have come to occupy a greater place in people’s lives, often to the equivalence of a child, the law has had to catch up.

Interestingly, three states – Alaska, Illinois, and California – now have statutes that require the family court to treat the division of pets in more of a custodial fashion, including the authority to have a shared custody schedule and payment of pet support.

In Missouri, we have not progressed as far as other states and we continue to treat pets as property under the law. However, spouses can structure into a settlement agreement a custody plan for pets. Spouses should request their attorneys work these matters into the overall settlement early and cover custody and support issues related to the pets where the courts themselves cannot. Indeed, knowing that the court may simply choose by lot which spouse gets a pet could be enough to encourage spouses to find common ground.

Do you have a prenuptial agreement? Ideally, you would have a prenuptial agreement or equivalent petnuptial agreement specifically dealing with what happens to your pet. Your agreement could cover issues like who becomes the legal owner and who will be responsible for ongoing care and costs. The agreement might not be enforceable; however, if you go to court, the court is likely to take the agreement into account when making a ruling.

Have you considered mediation? This approach to resolving the issue is voluntary and confidential. Together with the mediator, you and your spouse can consider different pet custody solutions that might be agreeable. For example, you could decide that one spouse gets to have custody of the dog for the weekend and the other during weekdays, or, you could decide that the pet follows the same custody plan as the children. Mediation tends to be more effective, less adversarial, and less expensive than going to court and litigating pet custody. Additionally, if the issue goes to court, the judge assigned to your divorce case may not consider issues like your pet’s welfare or your pet’s preferences. The judge will most likely view your pet as just another piece of personal property to be divided at divorce.

If the issue does proceed to court, you will need to present evidence for the court to consider, including, but not limited to:

  1. When did the purchase or adoption occur? If you bought or adopted your pet by yourself before you got married, the purchase or adoption documents would make it more likely for you to be awarded ownership by the court.
  2. What do you do for your pet each day?: If you bought your pet as a married couple, the successful spouse might be the one better able to prove their role as the pet owner. How much time do you spend with your pet? Who feeds the pet each day? Who takes the pet to the vet? Who takes the pet for grooming?
  3. If your pet a therapy animal?: If your pet is a therapy or assistance animal for you, it is very likely that you would be awarded ownership by the court.
  4. Is your pet bonded with your children?: If you have children, the court could take into account whether your children have particularly close bonds with your pet. If so, the court may be more likely to awarded the pet to the parent with greater physical custody time so the pet isn’t separated from the children.
  5. Will you have suitable housing post-divorce? – The court might consider who has suitable housing for your pet post-divorce as this would ensure that the pet is placed with the spouse who is in a better position to continue taking care of him or her.
  6. If sharing custody, do you share expenses? The court can also rule on one spouse helping the other with covering ongoing expenses for your pet (i.e., medical bills) if a shared custody agreement is determined to be best for the divorcing family.

The best possible outcome is for you and soon to be former spouse to come to a mutual agreement about what to do with your pet. In reaching a conclusion, take time to consider all the factors discussed above for the best possible outcome for your pet. For most divorcing spouses, the question of who gets to keep the family pet isn’t clear cut. It’s always best to try to resolve this issue without going to court, which can be costly, expensive, and slow. Divorce and child custody arrangements can have a drastic effect on your pet. Your pet provides you and your family with unconditional love and companionship, so it’s worth the time and effort to find the best possible solution for him or her.

Should you need the advice of an experienced divorce attorney or have questions or concerns about your situation, know that we are here to help and ready to discuss those issues with you.

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