Your marriage is over. You know it. You’re dealing with it. But the thought of losing your dog or cat along with your spouse is tearing your heart out. You’re willing to fight for your furry friend. The problem is: so is your spouse! You’ll share if you have to. But, is pet custody even a thing?
Pet Custody and the Law
According to a study conducted by the American Veterinary Association, 85% of dog owners and 76% of cat owners think of their pets as a part of the family. Unfortunately, the law in most states doesn’t view animals that way.
As cold as it seems to anyone who’s ever loved a four-legged fur baby, most states still consider pets to be property. Period.
That means that no matter how much you love your pets, once you divorce, either you become your pet’s sole owner, or your spouse does. There is no “pet custody.” There is no legal requirement to share time with your pet with your ex after you’re divorced.
What’s more, it doesn’t matter who would be the better “pet parent,” or what might ultimately be best for your pet. In the states that treat pets as property, no one really cares what’s in your pet’s “best interest.”
Who gets to keep your pet in a divorce is generally determined by one of three things:
- What you and your spouse agree on; or
- Who the pet’s legal owner is; or
- What a judge decides (… which is generally based on legal ownership).
Like it or not, in the eyes of the law, your pet has no greater legal status than your lawn mower.
The New Pet Custody Laws
Even though the law has traditionally held that pets are property, some judges are starting to disagree. According to the Animal Legal Defense Fund:
Although animals are considered property in the eyes of the law at this time, some courts are beginning to recognize that one’s relationship with this particular form of property known as the family cat, dog, bird etc., is much different from one’s relationship with other forms of property such as your couch, your watch or your coffee pot.
Maybe because of this kind of sentiment, the legislatures in some states have finally started to change divorce law when it comes to pets.
In 2017, Alaska became the first state in the country to require courts to take a pet’s well being into consideration when deciding who gets the family pet in divorce. The Alaska statute explicitly empowered judges with the authority to award joint custody of pets to a divorcing couple.
Illinois followed suit in 2018.
From January 1, 2018, forward, Illinois judges have been allowed to award either joint or sole possession of (and responsibility for) jointly owned family pets (referred to as “companion animals”) to one spouse or the other in divorce. Illinois law also now requires courts to take into consideration the pet’s well-being when deciding what happens to that pet after divorce.
Since 2018 a handful of other states, including New York, New Hampshire, and California, have passed laws governing pets in divorce. Other states, specifically Florida, Vermont, and Texas, have applied similar concepts through case law, even though they don’t have specific statutes governing pet custody.
What’s Best for Your Pet in Divorce?
While experts disagree about whether pets experience emotions or not, some scientists and most pet owners would argue that they do. Pets have been known to show signs of depression and anxiety, particularly when their routine changes or they lose an owner.
What’s more, in addition to experiencing their own emotions, pets often pick up on the emotions of their owners. When their owners are sad, mad, or depressed, their pets often mimick their owners’ behavior. That also makes them more apt to suffer when their owners are going through a divorce.
Dogs, in particular, need consistency and stability. When they don’t get that, they often start exhibiting behavior problems or acting out.
- Increased whining, whimpering or barking;
- Excessive grooming;
- Excessive lip licking or drooling;
- Engaging in destructive behaviors;
- Potty accidents;
- Panting;
- Yawning;
- Pacing;
- Showing their bellies;
- Showing the whites of their eyes;
- Shaking and trembling.
The challenge with pets is that, while all of these things can be signs of anxiety, they can also be signs of a physical illness as well. That makes it difficult to pinpoint what’s going on with your pet during a stressful life transition.
[NOTE: A trip to your vet to have your pet checked out is always wise if s/he is exhibiting any kind of abnormal behavior.]
What To Do If You Want Your Dog in Divorce?
If you live in a state that has a specific statute outlining what happens to pets in a divorce, getting a judge to grant you custody of your cat or dog in your divorce should now be much easier. The same thing “should” be true of sharing time with your pet.
However, even in states where the law now requires judges to award possession of a dog to one spouse or the other, some judges still may be reluctant to engage in full-blown hearings over “doggie visitation.” The reason is simple: Scarce resources.
Most courts these days are woefully backed up. The idea that a judge would spend precious court time entertaining arguments about “doggie visitation” doesn’t sit well with many judges.
That’s even more true when it comes to “post-decree” litigation. (i.e. litigation between people who are already divorced.) Adding pet issues into the list of things that post-divorce litigants can fight about could potentially explode the courts’ already overburdened dockets.
Getting a judge to decide who should get the family pet, or when each party can see a pet after divorce can be even harder in states that still classifies pets as “property,”
Of course, if you and your spouse can agree to share time and responsibility for your pet, the judge is likely to allow you to make whatever agreement you want. If you and your spouse can’t agree, however, that’s when you’re going to have to prove your pet custody case.
8 Tips for Proving YOU Should Get Your Pet in Divorce
Fighting to become the sole owner of your pet will require you to persuade the judge that s/he should award the pet to you. To do that, you’re going to have to prove either that the pet belongs to you, or that your pet will be better off with you.
Here are 8 kinds of evidence you can use to make your case:
- Ownership or adoption papers that show that you are your pet’s registered owner;
- Vet receipts or other documentation showing that you were the one who took your pet to the vet all, or most of, the time;
- Pet store receipts that show you were the one who bought your pet’s food, toys, etc.
- Any evidence you can find that you were the one who took your pet to training classes, puppy play time, etc.
- Pictures of you and your pet together (especially pictures taken at various times BEFORE anyone filed for divorce);
- Evidence that you will be able to provide a home for your pet after your divorce (i.e. does your lease allow pets?);
- Evidence your home is big enough for your pet, especially if it’s big. (Housing a 200 lb. English mastiff in a 500 foot studio apartment would clearly be problematic.); and
- Evidence that your work schedule provides you with enough time to care for your pet. (This isn’t as big a deal if you own a cat. If you own a dog, it can be huge!).
What’s Really Best For your Pet in Your Divorce?
Beyond simply proving that YOU would make the better “pet parent” after your divorce, if you truly love your pet, you would be wise to try to objectively consider whether living with you after your divorce would truly be in your pet’s best interest.
Do you have time to spend with your pet or do you travel a lot? Do you have space for your pet, or will you be living in a cramped apartment for a while? Can you afford to keep your pet, and pay for food, vet bills, doggie day-care, etc.?
Remember that if you get “custody” of your pet, you’re also going to end up being responsible for your pet – both financially and otherwise. So before you fight to get “custody” of your pet, take some time to think about what your pet’s quality of life will be with you, and with your soon-to-be-ex.
You should make the same analysis when considering whether you and your spouse should share time with your pet after divorce. You know your pet. Will going back and forth between houses truly be best for your pet?
If your pet is old, sick, or anxious, then schlepping him/her from one house to the other every week is probably not a good idea.
Finally, besides just thinking about you and your ex, you also need to think about your kids. If the family pet really belongs to your children, would letting that pet stay with your children be best? That way your pet, and your kids, would always be together. Would that be best for your pet? Would that be best for your children?
The Bottom Line When It Comes to Pet Custody
Divorce is hard on everyone, including the family pet. If your spouse wants to start The War of the Roses over your cat or dog, your divorce is going to be that much harder. That’s especially true if you live in a state that views pets as property or doesn’t support the idea of pet custody.
While that law is changing, unless you live in the small handful of states that are “pet-friendly,” you may find yourself fighting an uphill battle. In the end, only you can decide if that kind of fight will be best for you, your kids, and your pet.
_________
This post was originally published in January, 2018 and updated in September 20, 2023.
New pet custody law is interesting. Gov. Brown signed a bill on Thursday this week to help litigants in a divorce keep the family pet (or at least make an argument for the pet beyond a community property or separate property right). The law does not mention how it will apply to prenups where one party is entitled to the family pet per the prenup but per the the new law. If you have any information on this it would be helpful. Thanks. AMD.
Since the California pet custody law which allows judges to decide the ownership of pets in divorce cases was only signed into law a few days ago, I really can’t comment on how it will be interpreted or applied yet. But it is interesting that California passed this kind of law. Perhaps more states will follow suit soon!
Karen
My husband and I have been married for over a year and have been having difficulties due to his anger issues, alcohol abuse, and arguments over our financial situations. Before we got married, he surprised me by purchasing a puppy as a holiday gift. I work remotely and have been the pup’s primary caretaker and take him to all of his vet appointments, grooming, and boarding/daycare. I pay for all of his supplies, including medications, food, treats, toys, etc. My husband makes more money than me so we tend to split the costly veterinary bills when I am unable to cover them myself. But all other costs relating to the dog aside I have been responsible for. And again, I work remotely and am the dog’s primary caretaker. My husband has threatened to take the dog away from me if we move forward with a divorce, claiming that because he purchased the dog and is the one who signed him up for his ASPCA pet insurance that he is in a better position to be granted custody/property rights because he makes more money even though he has an office job and would not be able to provide regular care during the day. However, I also have severe anxiety and my primary care doctor and therapist had provided me with a signed note stating that our pup is my emotional support animal (ESA) back when we first got him in early 2018. While I am hoping we can settle our issues without divorce I have been increasingly concerned by the proprietary threats he has been making about taking the dog from me. We live in NY where the law view the dogs as property, and because he was purchased prior to us getting married I’m concerned the dog will be put in his care if we move forward with a separation or divorce proceedings. I would really appreciate any advice or insights you have on what I can do to help solidify my case to keep my pup. Thank you so much.
What you’re asking is, unfortunately, a legal question that I can’t answer since you live in NY. What I can tell you is that it’s not at all unusual for one spouse to threaten another with all kinds of crazy things when their relationship is breaking down. But just because your spouse threatens you with something (like taking the dog!) that doesn’t mean he can do that!
I can’t tell you what will happen to your dog under NY law. But I can tell you that a NY divorce lawyer could easily answer that question for you. I STRONGLY suggest you consult with a good NY Divorce lawyer about this issue, as well as everything else that deals with your divorce. Even if you have to pay for the consultation, it will be worth it. Educating yourself is the first step you need to take if you want to get divorced in the most intelligent, and least destructive, way possible.
Good luck.
Karen
My ex won our dogs during the divorce because she used her credit card to pay for them, while we were married. Even though we had the same bank account. For the last 2 years I’ve been taking care of the dogs 95% of the time because she hasn’t been able to care for them. I pay to take them to the vet, pay for medication that’s needed everyday for one of the dogs, pay for grooming, food and more. She hasn’t given me one cent. Now, she’s trying to take them full-time. How can I fight to have them full-time?
Oh my! What you have to do, as well as what your chances of succeeding may be, depends a lot on where you live. You really need to talk to a good divorce lawyer in your area to find out what your chances are for keeping the dogs based on the laws in your state. Also, I’m a little confused as to whether your divorce is already over or still in process. That, too, can make a difference in how things end up.
I have a question. My divorce case has basically been settled. We have agreed on everything accept the family pet. The divorce keeps getting delayed and now mediation has been ordered. Nothing is going to get settled in mediation so it is a waste of time and money. Can we not just have a quick one issue hearing with a judge over the pet and be done with it? Or can the divorce be granted and we fight over the pet on another day? I want out of this marriage but I want my pet too.
I don’t mean to sound like a lawyer, but the answer is: It depends. Is it theoretically possible to have a one issue hearing with a judge over your pet? Yes. Will it happen? I don’t know. That depends on whether the judge will hold a hearing before mediation. It also depends on whether you and your spouse will actually agree to everything else if the pet issue is still up for grabs. Many times one issue can derail an entire settlement. Then you’re going to trial about EVERYTHING, not just one issue.
Can your divorce be granted without settling the pet issue, and can you fight over that another day? Again, theoretically, yes. But most judges won’t do that. They don’t like to let one issue hang. So it’s usually an all or nothing proposition.
To get answers to what the judge in your case is likely to do, you need to ask your lawyer. (Sorry! I don’t know your judge, or the laws in your state, so I can’t help you there.)
Karen
My husband and I are separated. I’m in Florida and he moved to Texas where he lived with a roommate. He was recently deported and is not allowed back in the US. The dogs were left at his house who he shared with the roommate. The roommate is refusing to return the dogs. I was asked to pickup the boys but all the paperwork on them is at the house in the roommates possession. What can I do to get my dogs back?
Your best bet is to talk to a Texas lawyer (someone in the area of the house). S/he will be able to tell you what you can do to get your dogs and paperwork back.
I’m not sure what to do in this case.
I bought my dog 4 years ago, had her for about a year when I decided to switch jobs and move 40 min away. I took my dog with me but she did not adjust well so I brought her back to my parents, who then left her with my neighbor/ family friend. That became the norm for 4 yrs where he had her most of the time during the week and I took her on weekends when I could. Now that I have a better schedule and more time to spend with her, I asked for more time than just weekends and he’s saying no you don’t own her anymore.
I’m not really sure what to tell you. It doesn’t seem like this is a divorce issue (unless you are married to your parents’ neighbor). If you really want your dog back I suppose you could go to a lawyer in your area and see what your options are. Otherwise, you’ve got to try to work something out with your parents’ neighbor.
Sorry.
This didn’t quite cover what I needed. My card paid for the dog however my boyfriend at the time jumped to put his name on the papers. I have evidence that I paid for it and i have a.home that’s big enough for him while, when my fiance moves out, he has nowhere. His mother won’t even take him. Will i have the upper hand?
Honestly, I don’t know. You’re not married, so that changes everything. You’re going to have to talk to a lawyer in your area to get your answers.
Karen
I purchased my dog before I was married, we have only been married 4 months before he left, he was cheating for 6 months, I paid for the dog and all the vet bills, is there anyway I can keep the dog? I live in a house he lives in a rental, I financially can take care of the dog he can’t. Thanks
I wish I could answer you, but that’s a legal question. You’ll have to ask a good family lawyer in your area.
I purchased my dog a year before we were married. I have the breeder contract with ONLY my name on it and I have the bill of sale saying I purchased him. I live in nc. We married after I purchased him. So that means community property does not apply right?
North Carolina is not a community property state. It sounds like you have a strong case to argue that the dog is yours. But, to know what the law in your state says, and whether a judge would consider the dog to be yours or not, you need to check with an attorney in your state.
I’m going through a divorce and we have 2 cats and a dog. One of the cats was mine before we were married. The other cat we recently purchased in August 2018 and it’s under my soon-to-be ex husband’s name because he wanted to surprise me with a kitten. We also purchased a dog and she’s registered as an emotional support animal for my soon-to-be ex husband’s name. Can he legally keep both the dog and the kitten that are both under his name? And is there a way to transfer ownership?
Everything depends on what you agree to do in your divorce. Your best bet is to try to negotiate this amicably with your husband. You should also ask a good divorce lawyer in your area about your options. Since divorce law varies state to state, I can’t tell you what your state’s law provides. Sorry.
We are splitting an 8-year domestic partnership where we acquired many “rescue” animals with various ailments and ages. Tripods, diabetic, blind, deaf, abused, etc. I adopted most all of them in my name only and rent a large house with a yard. I also have a 16-year old son. My girlfriend says that she will leave the pets “over her dead body” so to speak. She has very little income, minimum wage, and no home as of yet but it will surely be small. She also has no car. I have paid thousands for an untreated mental condition as well as added her to my health insurance for the last 5 years and she has not followed through on her treatment plan and is getting worse – thus the separation. After many, many chances and offers of help, and real help, I worry she is going to try to take one or more of the dogs and not be able to care for it properly. I have evidence of, prior to our domestic partnership, she had a very sick diabetic cat that could barely walk due to diabetes. When I took over, she got better quickly, looked years younger, lots of energy, and no more diabetes. Two other cats died of cancer which I believe had a lot to do with little to no circulation in her garage apartment, flight attendent schedule, gone for days and freefeeding, and the burning of incense and heavy-scented candles with no ventilation. The stories go on regarding cat litter and dog cleanup insanity. So, at our house, I do 95% of everything regarding the animals feeding and care, including love and affection and they are more attached to me. I pay all vet bills, over $500 month online pet supplies (all with receipts) and have most all of their adoption registration papers. She wants to take some pups to sit with her for her mental health while she sleeps, does nothing, and lets them eat or go wherever they want in the house without proper cleaning. I don’t want to be the bad guy or get her in trouble, but I am not going to let her have even one dog or one cat that I do not believe she can take care of properly. That being said, is it just awful of me to be collecting all the paperwork and photographic evidence, including vet letters, etc where I’m always there alone and an excellent caregiver. I love them all and would let some go with her if I truly thought they were not in danger and would be happy. I do not think they will be OK emotionally, mentally, or physically – only make her feel less lonely. Am I awful to be collecting all of this information prior to breaking the news? The separation is in motion and we are doing it in stages.
No, you’re not awful. What you’re doing actually makes a lot of sense.
Also, you said “girlfriend” not “wife.” That makes a big difference. Since those are your animals (you adopted them in your name) I’m not sure what legal right your girlfriend has to them, if any. (If you’re concerned, you may want to talk to an attorney in your state about that. It shouldn’t be more than a 15 – 30 minute conversation.)
Of course, possession is 9/10ths of the law as they say. So I’d be careful about giving her access to your pets. If you try to be the good guy and let her sit with some pups, you may end up losing those pups. (Sorry. But it happens!)
I hate to be so tough. But, based on what you wrote, it seems that you already know you’re going to have to set (and keep!) strong boundaries regarding your pets and your (ex)girlfriend.
Hope that helps.
Karen
My husband has a personality disorder and as a result has had strange relationships with our dogs over the course of our marriage. He has been physically abusive toward some of the dogs we’ve owned, and now he is obsessing over one of our dogs. I live in Florida, but I’d like keep our dogs based on the fact that he isn’t mentally fit to properly care for them. My name is on the adoption paperwork for both dogs, as well as their county registration. I am willing to bargain to keep them, but they don’t have a lot of worth. They are both rescue dogs. In a state like Florida that views pets as property, what goes into determining “worth”.
I’m afraid you’re going to have to ask a Florida lawyer that question! I can’t answer legal questions online or outside the state of Illinois.
Ok, here’s my problem. I am currently going through divorce. My husband had me write up a contract after he left leaving me everything. Our divorce was going quick until he threw in he wanted my sons dog. The dog in question was purchased prior to marriage and I have the receipt in my name. No he stating that he was mentally unstable at the time he signed it and has changed all the vet records and has taken my name off of them. She is also microchips in him name. He states now that she is his sole property and has added his ex wife’s name to the records. She was purchased prior to our marriage as a shared support dog for my Autistic son and my husband. He left December 28, 2021 and it is now June 17th, 2022. The dog has been in care, I groom her every 2 weeks, vet care all of that. He has not contributed at all. I have text messeges stating he left me everything because he didn’t want me to left without anything. In March I gave him his dog, the one he solely owned and a few days later he took him to the shelter. I am also taken care of his child as he left her behind. The dog in question is licensed to me and he’s fighting that too. I am lost for words and he knows this is the only way he can hurt me now is to hurt my son.
I’m so sorry for what you’re going through! It’s terrible that your husband wants to take your son’s dog away. Unfortunately, you can’t stop him from fighting over the dog. You CAN, however, fight to keep the dog yourself. It seems that’s your only choice. Will that take time and cost money? Yes. But it sounds like fighting in court is going to be the only way you’re going to be able to keep your dog. (You’re also going to want to check with a good divorce attorney in your area about what the divorce law in your state is as it relates to pets. You want to make sure that you’re able to present the strongest case possible.)
Good luck!
Karen