Who Gets the Pet in a Breakup?

Use these links to jump to different sections:

• How Courts Determine the Custody of Your Pet
• Potential Alternatives to Going to Court
• Document Evidence of Who Takes Care of the Pet
• Create a Pet Custody Agreement Upfront
• Learn More and Seek Legal Help

If you have a child and you’re going through a breakup or divorce, putting a child custody plan in place is going to be part of the process. More and more, splitting couples are also having to decide who gets the pet.

The safest option is for the partners to decide who gets the pet in a breakup or divorce at the time of adoption or purchase or addressing it in a prenuptial agreement (prenup).

However, as Jennifer Braster, a business litigator at law firm Naylor & Brastor in Las Vegas, says, “Most people don’t think that way. And I understand that.”

How Courts Determine the Custody of Your Pet

If you’re getting divorced, the process—in theory—is relatively simple and can be handled by a family law attorney.

“In Nevada, animals are considered personal property. Much like your couch or your car, that property will be divided up,” says Braster. “I have seen, in several divorces, the parties have a custody schedule: The ex-wife gets the dog ‘x’ days, and the ex-husband gets the dog ‘x’ days, and then they provide for the division of veterinary costs and food.”

In states like Nevada that have a strict property view of animals, courts don’t have to consider factors beyond the animal’s fair market value when deciding who gets the dog, cat, or other animal in a divorce. However, they may take into account factors such as who the primary caretaker is or who the pet currently resides with. Other state laws have moved in the direction of explicitly recognizing the best interests of the pet in custody determinations.

If you’re not married, the situation gets trickier. If you absolutely can’t resolve the issue, a civil litigator can most likely handle your case.

Potential Alternatives to Going to Court

There are, however, a couple of solutions you can try before resorting to litigation. Braster says it can be as simple as allowing the partner who paid for the animal (or the veterinary bills or the food) to keep them.

Another potential workaround? “You could say, ‘I want to keep the dog. You said you spent $500 on the adoption fee and food. I will reimburse you the $500, and I get to keep the dog.’ Then, you could put that on a piece of paper and say, “I hereby give you $500. You have no more rights or interest in Spot.’”

Document Evidence of Who Takes Care of the Pet

If one partner is keeping the pet, documentation of that fact is key. Braster recalls one incident wherein she represented the boyfriend, who had given his girlfriend money to buy a dog—meaning, technically, she made the purchase.  

“Of course, the handing-over of the cash wasn’t documented,” Braster says. “He probably paid for 70 percent of the expenses, but it wasn’t proven because she physically purchased the animal and was on the ownership with the breeder for these two dogs. Ultimately, that was enough for the judge to decide she should retain ownership.

“We’ve all been in situations where everything is nice and rosy and amicable—until it’s not,” she adds. “You want to have something that shows your point, and it does not have to be a fancy contract. It can be a simple email back-and-forth.”

Create a Pet Custody Agreement Upfront

Another solution is for the two parties to make a custody agreement themselves. Again, Braster recommends getting the agreement in writing. “Just write a little contract or agreement, it can even be on a piece of handwritten paper, saying, ‘Girlfriend gets the dog every other week starting on July 1,’ or ‘Boyfriend gets the dog every other week,’” she says.

So, while most couples may not be thinking about the relationship’s end when they bring a pet into the picture, deciding what happens in the event of a split—and getting it in writing—can save time, money, and arguing down the road.

And one last word of advice? “If one party has the dog, and the other party thinks it’s his or her dog and calls the police, it’s highly unlikely the police will do anything, as it’s a civil matter,” Braster says.

Learn More and Seek Legal Help

Visit the Super Lawyers’ directory of animal law attorneys for legal advice tailored to your situation. For more information on this area of law, including joint custody and co-parenting arrangements, or how animal rights are viewed in the eyes of the law, see our overviews of family law and animal law.