In California, a judge can determine ownership of a pet animal.
What does that mean? In a divorce or domestic partnership dissolution, if the parties cannot come to agreement themselves on who gets ownership of a pet animal, the judge will now determine who gets custody – and they can assign sole or joint ownership.
During your divorce, one spouse may get sole custody of the pet, and the other does not.
The court will adopt the best interest standard for pets: Who was the primary caretaker of the pet during the relationship? Who has moved into a residence that allows animals? Will the pet be mistreated if s/he is in the control of one party? This is a subjective test and therefore litigation is frightening because it is difficult to determine who will win. And, the judge may order one party to care for the pet during divorce proceedings, but assign final determination of ownership to the other party.
A victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals. They can also obtain an order that the domestic violence perpetrator must stay away from the animal(s) and/or refrain from taking, selling, concealing, attacking etc. the family pet.
How can you avoid a dispute over your pet?
- Consider a prenup or postnup which will dictate who gets the family pet in a divorce or domestic partnership dissolution.
- Negotiate a shared “custodial” arrangement with your ex before the divorce is finalized. Many people would rather share a pet than take the risk that the Court will award their little buddy to the other partner. Just because there are no family laws that require the court to order a shared custodial relationship doesn’t mean you can’t agree to be creative with pet custody. Some of my clients have agreed to an alternating week situation with each ‘parent’ having the pet 50% of the time. They’ve also agreed to terms whereby they will be given a ‘right of first refusal’ for pet care. In other words, if one spouse is going out of town, s/he will offer the pet to the other spouse first, before choosing a pet sitter or boarding. Another idea is to negotiate how medical bills will be shared and whether or not one pet parent will need to notify the other prior to obtaining medical treatment and/or a new vet.
- Consider giving up a cash asset or taking on more than your fair share of debt in exchange for keeping your dog. If it is of highest importance to you to ensure that the pet stays with you (and/or the children if you have primary custody), it might be worth giving up something that entices your ex to give up the pet. Ask yourself the question, in 5 years will this matter? I assume keeping the pet WILL matter but perhaps taking on an extra credit card will not.
In any case, pets often have a significant bond with their owners — the thought of losing a pet in a divorce can sometimes feel extremely emotional and stressful. Ensure that you consult a legal professional if this is an issue that you are concerned about.
Should you wish to discuss your pet situation in detail, please schedule a free 15 minute consultation with us.