January 25

Pet Custody: Who Gets the Dog in Divorce?

29  comments


Tags

dealing with divorce, dividing property in divorce, divorce blog, divorce tips


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: male and female hands pulling on a cute, sad dogPet Custody and the Law

As cold as it seems to anyone who’s ever loved a four legged fur baby, most laws 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 really is no in-between.

There is no “pet custody.” There is no sharing time with your pet post-divorce. What’s even harder to accept is that, in most states, no one really cares what’s in your pet’s “best interest.”

Your pet has no greater legal status than your lawn mower.

While many of us think of our pets more as a part of the family than as property, the law in most states simply doesn’t view animals that way. In truth, that’s actually not that surprising.

At one time or another, the law has considered wives, children, and slaves to be property, too.

Luckily, the law is finally starting to change.

Cute pug looking at camera and wondering what's in a dog's best interest

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.

Last year, 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 recently followed suit.

Effective January 1, 2018, Illinois judges may now award either joint or sole possession of family pets in divorce. The new Illinois law also requires courts to take into consideration the pet’s well-being when deciding what happens to that pet after divorce.

While the Illinois statute doesn’t specifically use the term “pet custody,” it does talk about possession of, and responsibility for, pets in divorce. Essentially, that ends up meaning close to the same thing.

What To Do If You Want Your Dog in Divorce?

If you live in a state like Alaska or Illinois, getting custody of your cat or dog in divorce should now be much easier. Since courts in these states now are able to grant joint custody or joint possession of your pet to both you and your spouse, you’re no longer forced to either win or lose your pet forever.

You can share.

But even if you live in a state that still classifies pets as “property,”  if you and your spouse  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 don’t agree, however, that’s when things get trickier.

Picture of cute, serious dog and cat

8 Tips to Prove YOU Should Get Your Pet in Divorce

Regardless of whether the law in your state authorizes joint custody of a pet or not, 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:

  1. Ownership or adoption papers that show that you are your pet’s registered owner;
  2. Vet receipts or other documentation showing that you were the one who took your pet to the vet all, or most of, the time;
  3. Pet store receipts that show you were the one who bought your pet’s food, toys, etc.
  4. Any evidence you can find that you were the one who took your pet to training classes, puppy play time, etc.
  5. Pictures of you and your pet together (especially pictures taken at various times BEFORE anyone filed for divorce);
  6. Evidence that you will be able to provide a home for your pet after your divorce (Obviously, if you own your own home, this isn’t a problem. But if you rent an apartment, you may need to prove that your lease allows pets.);
  7. If you have a big dog, proving that you have a big place and a big yard could be helpful. (Housing a 200 pound English mastiff in a 500 foot studio apartment is clearly going to be problematic.); and
  8. 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!).

Hamster on a small, 3 wheel bikeWhat’s Really in Your Pet’s Best Interest?

While losing your pet in divorce can be heartbreaking, before you fight to the death to get the judge to award Fido to you, stop and think about what’s best for Fido!

If you can’t take care of your dog or cat after your divorce, don’t fight to keep him! If you don’t have the time, money, and space it takes to properly care for your pets, and your spouse does, then let your spouse keep the pets.

Yes, doing that will be hard. It will hurt. And it may seem horribly unfair. But, if you truly love your pet, put your ego aside and think about what will really be best for him/her.

Sometimes, doing what’s best for your pet means doing something very different than what you want.

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. Yes, it may make you feel better. But, if you’re making your pet miserable in the process, who are you really doing that for? Your pet? I don’t think so.

Another thing to consider is your kids. If the family pet really belongs to your child, consider letting the pet travel back and forth between houses with your child. That way your pet and your kid can provide comfort and stability to each other.

Cute sad dog looking up and wondering who gets the dog in divorceThe Bottom Line When It Comes to Pets and Divorce

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. Unfortunately, the law in many states doesn’t support pet custody.

While that law is changing, unless you live in Illinois or Alaska, 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.

_____________
Getting your dog in divorce, like getting anything else you want, takes preparation! Get your  FREE DIVORCE CHECKLIST and make sure you don’t let anything fall through the cracks.  Just CLICK THE BUTTON below!

Send me My FREE Divorce Checklist

You may also like

Virtual Court Hearings: 15 Simple Tips for Success in Zoom Court

What to Wear to Court: Practical Courtroom Attire Tips for Everyone

    • If you believe it is best for your ex to keep your dog…is it kinder to the dog to stay away rather than visit? I will miss him but I don’t want him to have added stress of confusing visits and then mommy leaves

  • 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?

  • 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?

  • 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 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.

  • […] can put you into a challenging situation, as collecting evidence to prove you should be the one to get the pet can be time-consuming, tiring, and, at times, […]

  • 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”.

  • {"email":"Email address invalid","url":"Website address invalid","required":"Required field missing"}
    >