Since pets are considered property and are classified under the same rules that apply to other property, pets can be marital or separate property.

A dog or cat may be separate property at the start of a marriage but become marital property as the non-owning spouse becomes attached to the animal over time. When who gets the family pet(s) becomes an issue, the courts usually consider the following:

Most courts consider pets to be community property, excluding any evidence that they are the separate property of either party. In light of the contention that can arise regarding pet custody, several states and municipalities are enacting or considering specific statutes that govern the disposition of pets in a divorce.

In Wisconsin in 2007, a state lawmaker introduced a proposal that is believed to be the first pet custody law in the United States. And more recently, Maryland lawmakers considered legislation that would treat a pet like a child by naming one parent custodial and the giving the other parent visitation. The proposed Maryland law would:

In another action, one court case determined that if the parties could not agree on pet custody, those pets would be sent to an animal shelter. The first spouse to go to the shelter to "adopt" their pets would then have legal custody, assuming no one else adopted the animals.