Who Gets Custody of the Dog during Divorce?

By Nancy Kay, Contributor

Who Gets Custody of the Dog during Divorce?

“Dogs are not our whole life, but they make our lives whole.” – Roger Caras

Do you refer to your devoted dog as if he or she is a highly adored member of the family? If so, you may be surprised to learn that most family law courts consider your Frisbee- catching canine to be classified as personal property.

When a couple with pets decides to divorce, the question often comes up about who gets to keep the pets for the long term.  During the time I worked for several divorce attorneys as a family law paralegal, I remember seeing legal motions filed that asked the court to grant exclusive rights to one or the other of the parties for beneficial use of the family pet.

Since most courts consider pets to be personal property just like your coffee maker or favorite chair, judges usually follow the same guidelines they use to determine who gets to keep personal property when couples are dividing things due to divorce. Depending on where you live during divorce, your pets may be considered community property or separate property that is awarded to only one spouse during the divorce.

During the last several years, the American Academy of Matrimonial Lawyers (AAML) surveyed divorce lawyers throughout the U.S. and discovered a significant increase in the number of pet custody cases finding their way through the legal system.

Many divorcing couples consider their pet to be just like their child and some are not able or willing to come to a mutual agreement about which of them should keep the family pet following divorce.

Due to the increasing number of pet custody cases, some judges are becoming more open-minded and taking into consideration many factors that can help them reach a determination about where the pet will live after divorce.

In some states, courts have awarded shared custody, visitation and alimony payments after reviewing evidence and testimony provided by the dog’s owners and even expert witnesses regarding what is in the pet’s best long term interest.

Some judges take into account which person can provide the most attention, love and take the best care of the pet in a manner similar to deciding parental custody cases.

How can you decide if keeping the family pet is the best decision for you?

Here are a few things to ask when considering pet custody:

  • Do you have a flexible work schedule or access to a reliable person who can fill in for you to care properly for your pet while you are at work?
  • Do you have the financial means to provide for the pet throughout the expected length of the pet’s life span?
  • Do you have the majority of parenting time with the children who are attached to their beloved family pet?
  • Has your spouse neglected the pet’s basic needs or acted abusively toward the pet?
  • Who will have more space for the dog to exercise and play following divorce?

If at all possible, it’s best to try to negotiate a signed and dated agreement in writing with your soon-to-be-ex spouse before or during divorce to avoid the headaches and expense of filing legal papers with the court to determine who gets that dashing dog or curious cat.

If you have had the personal experience of splitting up the pets due to divorce, how did you work it out?