After much heavy-hearted deliberation, you’ve decided to consciously uncouple. And while friends, lawyers and meddling family members have plenty of advice for what to do with your assets, the question of who gets your beloved cockapoo is a little more complicated. (She is your baby, after all.) That’s why we chatted to matrimonial and family law attorneys Kelly Frawley and Emily Pollock from Kasowitz Benson Torres LLP to get their take.
How is pet custody determined in cases of a divorce? “The approach to dealing with pet custody varies from state to state and the variance stems largely from whether pets are treated strictly as property (thereby going to whichever party is best able to demonstrate titled ownership) or whether a more custodial-inspired ‘best interest’ analysis is applied to determine where the pet would best be cared for,” Pollock tells us. In New York, for example, there is case law to support both of these approaches, but whatever is decided, the pup in question will be awarded to one party—not shared. (But again, this varies by state.)
Does the person who originally purchased the pet automatically receive custody of the animal? “It depends on where they live and which analysis is applied, but the source of funds is certainly a factor that could be considered in either analysis,” says Frawley.
Does child custody come into play? Short answer: Probably. “It does not impact the legal analysis, but practically speaking, where the children are bonded to the pet, a court that undergoes the best interest analysis is likely to consider where the children will be,” Frawley tell us.
Can you include a pet clause in your prenuptial agreement? Yep, and it would be enforceable. For example, you might want to include a clause about how ownership is defined such as specifying that any pets acquired during the marriage will be retained by the person whose name is on the pet license. Or if you’re entering the marriage with a pet already, then you may want to consider having a clause stating that she belongs to you alone.
What are some things you can do to ensure you won’t lose custody of your pet? So, here’s the thing—if you’re getting a pet with someone, then there’s always a risk that there’ll be a dispute about ownership in the case of divorce. But there are a few things you can do to increase the odds of keeping Fluffy with you. “Make sure that all documents relating to ownership (the purchase agreement, adoption contract, pet license, vet records, microchip records, etc.) are in your sole name. Further, if you have a partner or spouse at the time you acquire the pet, you should make your intentions clear with respect to ownership and consider memorializing in writing that notwithstanding that this other person may live with, help care for, and even contribute to expenses for the pet, you are and will remain the sole owner.”
TL;DR: What happens to your pet in case of divorce will largely depend on where you live with some courts treating pets as property and others considering what’s in the “best interest” of the pet. Similarly, some courts will allow co-ownership while others will not. But remember, these rules apply only to disputes in court—it’s always possible to reach an agreement on your own outside of the law.