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20 Jun 2019

’Til Dog Do Us Part: Who Gets the Pets in a Divorce?

While pretty clear guidelines have been set for property allotment and child custody, the protocols for awarding pet custodianship after a divorce can be a little murky.

The question is popping up more often however, as pets are becoming increasingly like family members. And the courts are taking the issue seriously too—you can look to 1944’s Akers v. Sellers to see that, even 50+ years ago, a pet’s role within a marriage was treated with a significant degree of dignity. 

Sole custody, visitation rights, alimony…we’ll explore a few of those issues and hopefully shed (pun intended) a little light on the matter.

A Fuzzy State

One of the primary issues to address are the legal nuances between the states—state laws can vary across state lines, which hampers any effort to codify a uniform set of guidelines for the entire country. More importantly, local laws are evolving, which puts the legal status of Princess Whiskers in a bit of flux.

Perhaps the core issue at play here is the question of whether a pet is to be considered personal property, so…

Are Pets Property?

Well, up until a few decades ago the answer was easy: pets were property.

Yep, in the eyes of most courts, poor Rover was looked at the same way as a lawn mower or a sofa. But, as alluded to above, laws are evolving. This article from the Animal Legal Defense Fund points to a good example: California recently joined a few other states in giving pets legal consideration more akin to people rather than mere property. It’s perhaps fair to assume that other states will follow suit in the years moving forward.

Petimony

Go ahead, Google™ it. Petimony is a very real thing and can potentially factor in to any pet custody arrangement. The cost of petimony can vary depending on the pet and can account for things like a pet’s original purchase price, care, feeding and veterinarian visits. As you would imagine, the concept of petimony aligns closely with the terms and guidelines of a traditional alimony arrangement.

What About a Pre-Pup?

Pets can certainly be part of a prenuptial agreement, and this measure can go a long way towards eliminating potential headaches—even in an amiable breakup. While it can be tough to predict the future, penning any sort of written arrangement on the subject before getting hitched can be beneficial. (It helps if both parties are aligned early on the implications of pet co-ownership.)

Visitation

Just like matters involving children, visitation rights for pets are often considered during arbitration/mediation. Given the nature of visitation, various factors play into the scope and scale of those rights, just as it would a child’s visitation schedule.

The courts will treat pet visitations with the same respect as any other visitation type too. Take what happened in 2000’s Desanctis v. Pritchard. (Desanctis v. Pritchard, 803 A.2d 230, 230 (Pa. Super. 2002))

You can read a more detailed summary on the Desanctis decision here on Ravel Law, but here’s what happened in a nutshell: During a divorce, the wife was granted custody of the dog, with the husband getting regular visitation rights. Sometime thereafter, the wife moved away, inhibiting the husband’s ability to see the pooch. The court ruled in favor of the husband.

So...after all that…who gets Schmoopy?

That question is entirely decided on an individual basis, yet courts can award custody using a similar yardstick as it would a child. That is to say, the pet will often go to whoever the court views as its primary caregiver.

In other words, if a spouse can demonstrate that they are the one exclusively responsible for care, feeding, litterbox cleaning, tennis ball fetching, etc., then their chances of getting custody are more favorable. Ergo, having receipts for things like cat food, adoption fees, and vet visits can be beneficial.

Another factor to consider is the role of children within the marriage. During an arbitration process, the arbitrator may examine the relationship the pet has to any children within the family. Using similar logic, the arbitrator may explore the pet’s potential living environments. While it may not be a big deal for a smaller friend like a Parakeet or Hamster, arguing to keep a Great Dane in a small urban apartment versus a sprawling country estate may prove difficult.

So again, pet custody is almost entirely decided on a case-by-case basis, with an arbitrator factoring-in a multitude of variables before making a decision.

For a more extensive read on the subject, check out this paper from attorney and professor Ann Hartwell Britton.

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