Introduction to Divorce and Pets

Dogs and cats sometimes become a heated consideration in divorce negotiations. Courts have held that pets are personal property, and that applicable principles about dividing personal property apply to the custody of a pet. If a court determines that an animal is marital property or property that may be awarded to one party or the other, it may consider "who would better care for the pet and who really had greater attachment to the pet." This, however, is not the "best interest of the animal" standard, and courts have shied away from awarding visitation.

Whereas the laws are designed to protect the best interests of children in divorce by allowing for shared custody, visitation, and alimony, the laws for pets are intended to benefit the owner instead. Under the law, pets are considered to be personal property, capable of human ownership and control. Courts have authority to award a pet to one owner or the other. To grant shared custody or visitation of the couple's pets would be exactly the same, in the eyes of the law, as having them trade their television back and forth from one week to the next.

Therefore, in deciding who gets the pets, the court goes through the same steps it does in dividing property. It considers whether its jurisdiction is a community property (split 50/50) or an equitable distribution (split fairly) state, and whether the property is marital or separate. Finally, it will take into account whether the couple already has a prenuptial or postnuptial agreement.

Because pets become such a big part of people's lives, however, some courts are beginning to change this analysis, and are willing to treat pets more like children. To date, this has primarily occurred with dogs. Courts have considered the best interest of the pets in determining which spouse gets custody of them. If a court is unwilling to do this, owners often work out a contract between themselves instead.

Even if the laws were to change to allow for broader considerations in determining pet custody, there are still unanswered questions (for example, which relationships and which species should qualify for protection). For now, creative arguments from the parties and open-mindedness on the part of judges are just starting to lay the groundwork for future case law. The potential for changes in pet custody laws seems to be at a peak.

In some households, dogs and cats substitute for children. And more than half the households in America have a pet. According to a survey by the American Pet Products Manufacturers Association, in the United States, there are about 74 million pet dogs in 43.5 million households, and 90.5 million cats in 37.7 million households. Based on those numbers, it isn't hard to see how popular and important pets are to their human companions and the bond that exists between people and their animals. It is easy to see what can happen to pets when a marriage ends in divorce. For the most part, there are usually three ways a pet situation can go. One scenario is that an animal is displaced, and ends up in a shelter. Other times, people work out the situation so that one keeps the pets and the other has visitation. And the last situation is when couples fight over the pet and a custody battle ensues.


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