What happens to pets in a divorce?

In the case of a divorce, marital property is either divided by a dissolution agreement or by the court. Often, parties dispute who owns what and it is up to court to determine distribution under the state's divorce laws. Pets are considered property and are classified under the same rules that apply to other property.

States divide marital property into two categories: community property and separate property. Property acquired or shared during a marriage is generally considered marital property by the courts. Property that belonged to one party before marriage, through inheritance or that was acquired by one party with non-marital assets will be considered separate property. Even if the property was separate prior to the marriage, if the property is shared or improved upon for the benefit of both parties during the marriage, the property becomes community property.

When who gets the family pet(s) becomes an issue, the courts usually consider the following:

• Who will be best able to provide the best care for a pet
• Whoever has a stronger emotional attachment to the pet

• A general rule is whomever is awarded child custody is more likely the one to be awarded the family pet

New Considerations

Most courts consider pets to be community property, excluding any evidence that they are the separate property of either party. In light of the contention that can arise regarding pet custody, several states and municipalities are enacting or considering specific statutes that govern the disposition of pets in a divorce. One court case determined that if the parties could not agree on pet custody, those pets would be sent to an animal shelter. The first spouse to go to the shelter to "adopt" their pets would then have legal custody, assuming no one else adopted the animals.

Talk with an experienced divorce attorney to discuss the issue of pets in a divorce.