If you are considering divorce and you share a pet with your spouse, you may be concerned about who will get the pet when you separate. In the vast majority of cases, the pet will be treated as property by the court. A skilled divorce attorney can help you to understand what your rights to your pet may be. This is also an issue that can be covered in a pre-marital agreement.
Where Will My Pet Live After My Divorce?
Pets Are Property
While we may consider them family members, in a divorce a pet is considered property. This “property”, e.g., Fido, is usually awarded to one spouse, although this is changing with some judges now awarding shared custody of pets.
Despite the emotional connection many people have with their pets, courts in most jurisdictions will view pets the same way they view other property, like furniture or jewelry. If one person brought the pet into the marriage, then they will likely be awarded the pet during the divorce. However, there are many variables, such as who takes care of the pet, that the court may take into account. The first question that the court will address is whether the pet is separate or marital property. Typically, this issue will turn on whether the pet was owned by one of the parties before the marriage. However, like other property, there is no reason to believe that a pet cannot become marital property due to commingling.
Commingling is when something that is originally separate property becomes marital property. An asset that one person inherited during the marriage or brought into the marriage at the outset will be separate property unless it is mixed in with marital assets. One way for a pet to become marital property for marital funds to be used to take care of the pet. This includes paying vet bills, buying food, and providing other things that the pet needs with marital assets. The court will look at all of the circumstances, but the more that marital funds are used to take care of the pet, the more likely it is that the court will see the pet as marital property.
One of the more persuasive factors a court will consider in determining where a pet should live after its owners divorce may be who has custody of any children of the marriage. While the courts typically treat pets as property, they are also concerned with the best interests of the children, and may determine that the pet should stay with the children.
“Visitation” of Pets
Though it is relatively rare, in some circumstances the court may grant visitation of a pet to one of the parties after they divorce. In other words, one person will be given ownership of the pet, but their ex-spouse will be allowed to visit it at certain times. Keep in mind that couples can generally agree to any arrangement between themselves that they see fit. However, the amount of judicial time and resources that the judge will give to these kinds of topics will vary depending on the judge and jurisdiction.
Best Interests of the Pet
It is becoming more common for judges to take “the best interests of the pet” into account. Some jurisdictions are passing laws that include this consideration when determining who the pet should live with after a divorce. However, this is still relatively rare. It is more common for judges to do an informal “best interests of the pet” analysis that may take into account who has a yard or is in a better position to care for the pet.