Who Gets the Dog in Divorce?

Some divorcing couples treasure their pets as if they are children. That's why pet custody laws are becoming an increasingly important point of contention during divorces.

Many couples (and their children) might wonder: Who gets ownership of the family pet after a divorce? How does a court determine who gets custody of the dog in divorce cases?

In this article, we'll address the following issues about pet ownership in a divorce:

The Issue: Pets Are Legally "Personal Property"

Pets are generally treated as personal property when a couple divorces. This is hard for many people who see a pet as part of the family. In many states, deciding who gets custody of Fido is the same as deciding who gets custody of the table lamp.

That's why some courts are wary of deciding issues such as custody and visitation rights of a pet. It's not like individuals are usually granted visitation rights to see their favorite couch every week.

The issue is especially hard if courts refuse to get involved. Pet custody laws may become uniform at some point. But for now, what happens to your pet after a divorce is unclear. Don't let a pet custody battle draw out your divorce and worsen a bad situation.

Changing Laws: Pets as More Than "Personal Property"

The good news is that some states are changing how they view pet custody laws. Some courts will treat pets more like a child custody case.

Judges in these courts will factor in the well-being and best interest of the pet. Then they will decide who will get custody and visitation rights.

Who Gets Custody of the Dog in Divorce Proceedings?

Pet custody depends on your state's laws. To date, only a few states have ruled on pet custody cases:

  • Alaska (Amendment HB 147 — "best interests of the pet" system)
  • Illinois (Public Act 100-0422 — only awards ownership of the pet, not custody or visitation)
  • California (Family Code Section 2605 — courts can award full or joint ownership)

You can also determine custody of the pet through prenuptial or postnuptial agreements. In a prenup or postnup, a piece of property can be declared separate property before or shortly after the marriage. These agreements can include the pet as one spouse's property to avoid discourse over the family dog among divorcing spouses.

How to Get Custody of a Dog: How Judges Determine Custody Agreements for Dog Owners

The courts use previous cases to determine who gets custody of the pet. In general, a pet custody dispute will review these factors:

  • Who paid for the dog (and is there evidence of payment)?
  • Who pays for the pet's day-to-day care, such as food, doggy daycare, vet bills, or other services?
  • Who spends time with the dog?
  • Is there a history of animal abuse?
  • Will seeing the pet less affect the human children in your custody?
  • What are the best interests of the animal (does the dog prefer the company of one owner more than the other)?

Note that your dog could be more than a pet. If it is an emotional support animal or service animal, it is not seen as a family pet and cannot separate from you. Talking to a doctor and certifying your dog as your emotional support animal is a path forward some owners take if the animal meets the requirements. You can learn more at the Animal Legal Defense Fund website.

To win a pet custody fight, the most important thing you must show is that you spent the most on your pet. Gather any documentation of bills you have paid, time spent with your pet, and other factors that show you have put the most money and time into your pet and its well-being.

Can You Get Joint Custody for a Pet?

Not legally, unless you live in Alaska, Illinois, or California. Some courts will take the case and decide. However, the decision is usually one person having full ownership or "custody." Few judges will rule on a visitation arrangement.

This can be intimidating because once the judge decides, that decision will be legal. You can submit an appeal on the case if you want shared custody but do not win the case.

Finding an amicable joint custody arrangement is best done outside of court or through mediation. You will likely have to live with the judge's decision once you bring the case to court.

New divorce laws are changing how the courts view dogs. Still, until these laws change, most judges will award just one person with full ownership.

Do I Have Any Legal Options to Get My Dog Back?

If your state left your pet to your ex-spouse, you are probably wondering how to get custody of your dog back. The law isn't uniform. Potential joint pet owners may need to consider negotiating among themselves.

Mediation is a way to find a fair resolution on who gets a pet when a relationship ends. A mediator can help you find a fair visitation schedule instead of taking the issue to divorce court.

Can I Sue for Pet Ownership?

Yes, you can sue anyone for just about anything in civil or small claims court. But you need to ask yourself if it is worth your time and money if your chances of winning are not good.

For most pet owners, getting their beloved pet back is worth any money. The process will involve gathering evidence and witnesses and presenting everything clearly before a judge. A divorce lawyer will do this for you if you hire one; odds are you will have a stronger case if an attorney does professional work.

How Will an Attorney Actually Help Me?

If you already use a divorce attorney, you can add pet ownership to the docket of other issues they will help you with.

Since most states view pets as marital property, you can factor them into the rest of your divorce agreement. You might offer something your ex-spouse wants in return for keeping your pet, and an attorney can help you draft up that settlement agreement.

Your attorney will examine all sides of the property division and tell you the likely outcome. They can also offer insight into how your ex-spouse and their attorney might negotiate so that you can plan proactively.

If your pet's ownership goes to court, you can win with professionally gathered and presented evidence. Your attorney will also coach you on your testimony, and they should have a Plan A, B, and C to try and get your pet back.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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