Shared Custody for Pets: Who Gets the Pet in a Breakup?

More and more, couples going through a breakup or divorce are having to decide who gets their beloved pet. Couples can plan ahead for pet custody in a prenuptial agreement, or negotiate shared custody for their pets as part of divorce proceedings.

For legal advice on pet custody arrangements for divorcing couples, talk to an animal law attorney.

Prenuptial Agreements To Avoid Pet Custody Cases

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 address it in a prenuptial agreement.

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.”

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How Courts Determine the Custody of Your Pet

Even if you think of beloved pets as family members, they are considered property in most states. Most family courts will treat pet ownership disputes the same as other marital property or separate property claims.

“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 pet X days, and the ex-husband gets the pet Y days. Then they provide for the division of veterinary costs and food.”

In states 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.

States Recognizing Pet Custody Agreements

A new legal standard is emerging in pet custody that assesses the pet’s well-being and best interests, much like child custody standards. Alaska paved the way with the country’s first legislation outlining this basis for pet custody disputes, with other states following suit.

For example, Illinois divorce courts can regard companion animals as more than personal property. Divorcing couples may request that the court consider their pet custody arrangement in several ways:

• If the parties are filing for a simplified dissolution, they must attest to that ownership and responsibility for all companion animals in a written agreement.
• If the parties are seeking temporary relief, they may request a temporary allocation for the care and responsibility for a pet, including a shared arrangement. In assessing a temporary arrangement, the court can consider the pet’s well-being.
• If the parties are entering an amicable settlement agreement, they may provide for sole or joint ownership of a companion animal. The court can review the terms of a pet agreement for incorporation into the court’s order.
• If the parties seek disposition of assets, the court will first assess whether a pet is a marital asset (whether they got the pet during the marriage and not as a gift or inheritance, or from previously held separate funds). The court is then directed to allocate sole or joint ownership and responsibility for the pet, based on the well-being of the animal.

Service Animals Aren’t Included in Custody Allocations

One category of animals explicitly not covered by the custody allocation is that of service animals. Service animals are animals trained in obedience and task skills to meet the needs of someone with a disability.

The individual requiring the assistive service has full custody of their service animals.

Potential Alternatives To Going to Court

There are a couple of solutions you can try before resorting to litigation over pet custody, Braster says. It can be as simple as allowing the partner who paid for the family pet (or vet bills or food) to keep them.

“Another workaround is to say, ‘I want to keep the pet. You said you spent $500 on the adoption fee and food. I will reimburse you the $500, and I get to keep the pet.’ 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 Who Takes Care of the Pet

If one partner is keeping the pet, documentation of that fact is key. Braster recalls one incident where she represented the boyfriend, who had given his girlfriend money to buy a dog. In that situation, 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 in 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 pet every other week starting on July 1,’ or ‘Boyfriend gets the pet every other week.’”

Most pet owners may not be thinking about the relationship’s end when they bring a pet into the picture. However, 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 pet, and the other party thinks it’s theirs and calls the police, it’s 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, see our overviews of family law and animal law. For legal help with custody of a pet in your divorce case, talk to an animal law attorney.