How Your State Determines Pet Custody in Divorce
- Is your pet a family member or a piece of property?
- Which states view pets as property?
- Progressive laws in a handful of states
- Negotiation is possible
Let’s say you’re getting divorced. In the best-case scenario, you get along fairly well with your spouse and agree with them on how to divide your property – house, vehicles, retirement accounts, and such. You even agree on how to divide your debts, including your student loans and credit card balances.
But what about your pets? Animal lovers tend to think of their furry friends as family members, not pieces of property. You may have stronger feelings about who keeps the dog than who keeps the house.
Is your pet a family member of a piece of property?
In much of the United States, companion animals are considered property, not family members. What does this mean for divorcing couples who care deeply about their pets?
It depends on where you live. The divorce laws in your state dictate how a couple’s things are divided in divorce. Here’s a quick primer:
- The majority of states are equitable distribution states. This means that property (including pets) must be divided fairly. If a divorcing couple cannot agree which person gets to keep a beloved pet, a judge will decide for them. Click here to view a list of equitable distribution states.
- A minority of states (nine states, to be exact) are community property states. In these states, property is to be divided 50/50 in divorce. For example, if a couple cannot agree on which person gets to keep the pet, the court could feasibly order them to sell the pet and split the proceeds. (Note: This is not an absolute rule. The judge might provide an alternate solution as well.) Click here to view a list of community property states.
Which states view pets as property?
If you live in a state that views your pet as a piece of property to be divided in a divorce, it’s possible that the court could order one person to keep the pet while the other loses access to it. As mentioned above, it’s also possible that the court could order you to sell the pet and split the proceeds.
You may feel disheartened to learn that your pet is considered “property” rather than a family member in your state. Viewing a pet as property implies that little consideration is given to the pet’s well-being in a divorce judgment. It intimates that the court is more interested in adhering to a general law than what’s fair to the pet.
Indeed, your state’s divorce laws may make it harder (or easier) to gain custody of your pet in divorce. It depends on your situation.
Here is a list of the states that tend to view pets as property to be divided in divorce:
- New Jersey
- New Mexico
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
Notably, some of the above states do not have clear and specific guidelines for pets in divorce, or they have pending legislation that is not yet official. This means that if a judge were to award your ex with ownership of your pet, you may have a chance in an appeal.
It’s also important to note that a judge in any state could take a pet’s best interest into account when awarding ownership in a divorce. However, they are not required to do so.
Progressive laws in a handful of states
The above list is long, but a handful of states have enacted laws that take a more personalized approach to pet custody arrangements. The following states may consider factors such as the pet’s well-being, who primarily cares for the pet, and which person has the better living situation for the pet.
Negotiation is possible
Despite the property laws and philosophy toward animal custody in any given state, it is possible for a divorcing couple to negotiate an arrangement for their beloved pet outside of court.
For example, if both parties were willing, a joint custody arrangement could be presented as part of the marital settlement agreement. A judge would still have to sign off on it, but if it appears fair and both parties agree, they are more likely to approve of a pet proposal.
If you want to negotiate with your soon-to-be-ex about pet custody but need some outside help, consider hiring a mediator to assist you. A mediator is a neutral third party who has been trained in dispute resolution. They can help both of you express your point of view while keeping the best interest of the pet at top of mind.
FAQ about pet custody in divorce
What if I owned my pet before our marriage?
If you owned a pet before marriage, your state may view it as your separate property. In that case, ownership of the animal would immediately revert to you in divorce. Of course, your spouse would be free to appeal that decision by a judge.
Since laws differ by state, take a bit of time to research the laws in your state. You might consult a knowledgeable attorney for some legal advice on the issue.
Can pet custody be specified in a prenuptial agreement or postnup?
Yes. If you were to create a legally binding prenup or postnup specifying who would keep your pet(s) in a divorce, there would be no arguments about pet custody in divorce. A legal prenup or postnup is a binding document.
ReferencesCreating a Companion Animal Custody Law (Maine). Animal Legal Defense Fund.
HB 147. Alaska State Legislature Sponsor Statement.