My spouse and I have an understanding. In the event we would ever break up (which we never will because we have a very happy marriage . . . but just for the sake of discussion) we will end up in a very expensive divorce arguing over who gets “the little ones”. We both share the opinion that our little girls and boys are much more important than money and property. We are a peaceful couple that treats one another with respect and love. I dote on my spouse and would do anything for her. But, if we were to ever get a divorce, I would stop at nothing to ensure that those little angels resided with me, and I am fairly certain that my spouse, too, would do everything in her power to keep those babies with her.
I am of course, referring to our dogs. They are members of our family. They are appreciative, excited to welcome us home from work, well-behaved (mostly), and never back-talked. Come to think of it, my actual children could have learned a thing or two from them. Our pets are an important part of our lives. We love them while they are alive, and mourn them when they have passed. They have value that cannot be weighed in dollars and cents. It’s not going to be that easy to just “replace a pet” if the pet ends up living with the spouse that we are divorcing. Because of this, we desire to have custody of our pets, and if appropriate, to allow the other spouse to have visitation with the pets. However, this is not how the Court will view your pets. There is no “pet custody”. Unfortunately, pets are considered property. Although we value them from an emotional standpoint, the law assigns a monetary value to them. When the Judge considers the assets and debts of your marital estate, the pet gets included in that consideration. If the pet parents can’t agree on who will keep the pet, the Court will have to decide who to award the pet to as personal property.
So how will a Court decide this? A lot of factors can go into that decision. Did the pet belong to one of the parties before they got married? Which party was the one who took the pets to vet appointments, or took them to be groomer, or was the one who normally fed the pets? The Court might award the pets to the parent who has primary custody of the children if the children were attached to the pets. Or, perhaps one party travels frequently for work or works long hours such that the party doesn’t have as much time to spend with the pet as the other parent does. Alternatively, where there is more than one pet in the marriage, the Judge might decide to split the pets between the parties. (Yes, I can hear all of you pet owners right now, whose hearts are breaking along with mine over the thought that pets who are emotionally attached will be torn away from one another . . .)
Here's the point. Pets are not children, and we can’t negotiate our divorce cases as if they are. A dog, cat, horse, fish, bird, and any other animal is personal property. The Court cannot look at pets as anything other than property. So, if we want to keep this decision out of the Court’s hands, we should try to consider the many factors that the Judge might look at, and communicate with one another about what the best approach is. I have great respect for the clients that I represented that are able to work with their soon to be ex to come up with a plan for sharing the pets – even going so far as to schedule “periods of responsibility” in which a party will have the pet in his or her care. There are many possibilities to consider – each just requires creativity and compromise. I recognize that this is often easier said than done. However, if we can’t reach common ground, then we need to be prepared for the possibility that we will leave the marriage without that pet in our lives.