Dividing Fido and Fifi: Are pets treated like people or property in a divorce?

Divorce, Relationships

By Jennifer Brandt

Many moons ago, when I was a brand new family lawyer, I was assigned a real “dog” of a divorce case. Not only did the case have seemingly little merit, but it also involved the custody of three dogs.

Canine custody battle

The couple involved was childless, but they loved their pets unconditionally and both wanted to keep the animals for themselves. Like parents fighting over the custody of their children, both parties thought that they were the best “parent” for their dogs and each felt that the dogs would be unhappy with the other.

To make matters worse, the case was assigned to the meanest judge on the family court. My colleagues advised me not to worry, telling me the judge would never hold a trial on the issue. After all, in a divorce, pets are merely treated like any other personal property, no different than a lamp or chair, and the court would not waste valuable time hearing testimony on the issue.

But when I arrived in court that day, the judge’s docket was empty and he decided to have one of the first-ever pet custody trials. In the end, the judge awarded one dog to each of the parties and ordered that they share custody of the third. Surprisingly, the crotchety old judge was light-years ahead of his time.

The changing legal landscape for pet parenthood

The pet industry in the U.S. is estimated at more than $60 billion. People buy clothes for their pets and strollers to cart them around. They feed them organic food and take them to doggie daycare and pet spas for vacation. For many, pets are treated like children; in some cases, even better than children.

However, in most states, when parties get divorced, pets are legally considered property, and judges often do not spend time deciding where they go or whether the animals see both “parents.” Slowly, but surely, things are changing. It is no longer such an aberration for a court to spend more time considering shared arrangements for pets – treating pets more like people.

In fact, a growing body of case law shows that judges will sometimes look at which party will better care for the pet when making the decision to whom it will be awarded. This does not rise to the level of the best interest test, routinely used in child custody matters, but it is a start.

Plan ahead for your pet’s future

Despite this shift, parties cannot necessarily rely on ending up with a pet-loving judge who will take the time to carefully analyze how to distribute a pet.

To take that discretion out of judges’ hands, parties are wise to negotiate in advance what will happen to their pet in the event of a divorce. They can do this by way of a prenuptial agreement, negotiated and executed before the marriage, or a postnuptial agreement, executed after the marriage.

Unlike child custody, which is modifiable and, therefore, not a legally binding piece of a postnuptial or prenuptial agreement, pet custody is considered a distribution of property and is legally enforceable when contained in an otherwise-valid agreement between the parties.

Pet owners must remember that while pets are often thought of as our “babies,” legally they are not. And while the law is moving in the direction of recognizing our pets as family members, it is not quite there yet. If you want to be a truly responsible pet parent, make sure to predetermine who will care for your pets in the unlikely event of a divorce.

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