Who gets custody of the pets when a couple divorces? This can be as sharp of an issue as child custody for some people. Pets are often viewed as family members, thus, determining custody can be very difficult. The quick answer to how pets are handled in a divorce is that the law treats pets as personal property. Pets will be “distributed” in the same way a piece of jewelry or furniture would be distributed. Given the callousness of this legal concept, some courts have recently begun to change how pet custody is determined. The new trend in pet custody is to consider a set of factors that consider the well-being of the animal, instead of merely treating the pet as an object. Remember, every jurisdiction is different, so the way a pet is handled in a divorce in New York may be very different from the way it is handled in California.
General Background of Property Division in Divorces
Traditionally, pets are treated as personal property. This means that the judge will treat your pet the same as a piece of furniture or jewelry when deciding who gets the pet in the divorce. There are two main ways that a state splits property: (1) community property (splitting everything 50/50) and (2) equitable distribution (splitting everything fairly).
In both community property states and equitable distribution states, the court will consider whether the property is marital or non-marital. This may differ from state to state, but generally marital property is property acquired during the marriage. Thus, in a community property state, the judge will split the marital property 50/50, and in an equitable distribution state, the judge will split the marital property in a “fair” way.
Non-marital property is not split up because non-marital property remains with the person who owned it before the marriage. For example, if you owned an expensive watch before the marriage, that watch will probably be considered non-marital property and it will be returned to you in the division of property. Remember, property division is an extremely complex area of the law and this is just a basic rundown of how it works.
How Property Division Applies to Pets
Now that you have an idea of how property division works in a divorce, we can apply the concept to pet custody. First, the pet is considered personal property, just like a watch or a piece of furniture. Second, the pet must be determined as marital or non-marital property. In other words, did you get the pet after you were married or did one of you bring the pet into the marriage? The person who had the pet before the marriage is likely to get custody. Another way to determine if the pet is non-marital property is to determine if it was purchased with non-marital funds, but during the marriage. If it was purchased with non-marital funds, it may be considered non-marital and custody may be awarded to the purchaser.
Other Considerations that Factor into Pet Custody: Children and Prenuptial Agreements
It may not be as simple as who bought the pet when determining custody of the animal. The court will also evaluate any prenuptial agreements that discuss ownership rights. If the prenuptial agreement states that ownership of the pet should go to one person and the prenuptial agreement is valid, then the court is likely to uphold such agreement.
Another consideration is children of the divorce. A court will consider the effect of keeping the pet at a different household than the children. If it is in the best interest of the children to keep the pets and the children together, then it is likely that the court will do so.
Visitation of Pets, Shared Custody of Pets, and Alimony Payments of Pets
Remember that every jurisdiction is different and it is important to know your specific state law. With that being said, some courts have allowed visitation of pets, shared custody of a pet (e.g., the pet stays one week with one party, the next week with the other party), and even alimony payments to the pet owners. This is not possible in every court, but just note that it may be an option.
Modern Trend for Pet Custody
The new trend in pet custody is leaning toward a set of factors that takes into consideration the pet’s well-being. In fact, Alaska recently enacted new pet-custody legislation that gives animals rights as living creatures and not just inanimate personal property. These new set of factors tend to look to the best interest of the animal, which is the typical analysis for child custody, as well. Best interests factors include things like, whether the home is suitable for the pet, whether one person was the main caretaker of the pet during the marriage, whether one party has better resources for caring for the pet, etc.