Updated: Jul 19, 2021
"I'm taking the dog, dumbass." - Paulette Bonafonté (Legally Blonde, 2001)
A common question all divorce lawyers field is, "After my divorce, who gets to keep the dog/cat/pet?" Nobody wants to lose their furry friend, whether it be through old age or through a fatal accident, but even worse is to lose them while knowing they are still out there in the world, just not with you. This is the typical result of a divorce in which the spouses had a common pet, equally loved and equally valued.
Unfortunately, in the eyes of the law, your dog(s) and/or cat(s) and/or other pet(s) are simply considered personal property, no different than your TV or couch. This means that they are subject to the guidelines of equitable distribution and will be assigned a value, irrespective of their emotional value to the spouses. Now, this isn't to say that the emotional value of your pet isn't considered at all, but it isn't valued to the extent that a pet owner would view it.
The Court has no way of assigning a dollar figure to the emotional weight of your beloved pet, they can only assign what would be the fair market value for a pet of similar age and breed. Thus, your pet's value will boil down to a few hundred or thousand dollars and will be tossed into the equitable distribution schedule alongside your jewelry, electronics, and keepsakes. A truly vindictive spouse may use this to their advantage to get the other spouse to relinquish some other assets in exchange for not pursuing possession of the pet, this is where the heartbreak can set in.
However, there is a caveat to this. If the pet was brought into the marriage by one spouse before the parties said their "I do's", then that pet will be presumed that spouse's sole property and will not be up for grabs. Unless the other spouse can show significant circumstances to defeat that presumption, the pre-marital nature of the pet will be the best way to make sure in the event of a failed marriage that your pet remains "your pet".
Another way to defend against issues with "who keeps the pet", is to create terms in a prenuptial or postnuptial agreement. This is particularly helpful if the parties purchased the pet jointly prior to marriage and then entered the marriage with the pet already in their possession. Prenuptial terms, if drafted correctly, will be upheld by the Court and will award possession of the pet based upon the terms within that agreement.
Dogs, cats, or other pets, are oftentimes viewed as members of the family, but the grim reality in a divorce is that they are viewed as personal property. Before adopting or purchasing a pet in a marriage make sure you understand that your love and affection for that animal may not necessarily mean you will be granted possession in a divorce. Unlike children, there is no timeshare plan for a pet, there will be no custody agreement, only the assignment of "property."
An experienced family and marital law attorney can assist with your pet possession issues in a divorce, but like anything in law, there are no guarantees so be prepared for a potentially draining litigation process if both you and your spouse have a deep affection for your furry family member.