Three States Now Recognize Pets as More Than Property During Divorce

Written by Dr. Karen Shaw Becker

pet custody in divorce

Story at-a-glance -

  • In California, a new law was passed that treats pets more like children and less like property in divorce cases
  • The California legislation differentiates pets from other types of marital assets and gives judges the authority to decide who gets to keep the family pet after divorce
  • A similar law took effect in Illinois in 2018, which also allows judges to decide who gets to keep the family pet
  • In 2017, an amendment to Alaska’s divorce statutes took effect that requires courts to consider the well-being of the animal and also allows judges to grant joint custody of pets

Many people view their pets as part of the family, which is why it’s so difficult to decide who gets to keep the family pet after a divorce. It’s estimated that in nearly 40 percent of divorce proceedings, neither party wants to give up their pet,1 but laws in most areas are outdated, regarding animals not as living beings but as pieces of property like a couch or piece of jewelry.

Fortunately, this is slowly changing, including in California, where a new law was passed that treats pets more like children and less like property in divorce cases. The new legislation will help ensure that pets are well cared for after divorce, even in the most contentious of cases.

Legislation May Help Grant Pet Custody to the Best Pet Parent

The California legislation differentiates pets from other types of marital assets and gives judges the authority to decide who gets to keep the family pet after divorce. Information such as who feeds the pet, walks them, takes them to the vet and protects them can all be factored in to this often-difficult decision.2

California is only the third state to provide guidance on the care of companion animals in a divorce. A similar law took effect in Illinois in 2018, which also allows judges to decide who gets to keep the family pet. The Illinois law allows judges to consider which placement is in the best interest of the animal, factoring in questions such as:3

Which party is the animal most bonded with?

Which party interacts with the pet on a more regular basis?

How old is the animal and will he be able to adjust to moving to a new home?

Are there other animal friends or children in the home that the animal would miss if moved to a new home?

Will moving require the pet to travel long distances or put the pet under excessive stress?

Is shared custody possible?

Is Joint Pet Custody a Good Solution?

Alaska actually became the first U.S. state to change the way pets are viewed during divorce proceedings. In 2017, an amendment to Alaska’s divorce statutes took effect that requires courts to consider the well-being of the animal and also allows judges to grant joint custody of pets (a provision that will also be allowed in California).

Whether or not your pet would benefit from travelling between two households depends on the individual animal, but in general dogs may tolerate such a situation better than cats.

“Cats are more attached to a place, whereas dogs or more attached to people,” Dr. Cecilie Mejdell, a researcher at the Norwegian Veterinary Institute who specializes in animal welfare, told Science Nordic. “[But] it’s important to remember that dogs and cats are also individual and not all of them react the same.”4

If you and your ex-spouse will be living nearby following the divorce, and you have an outgoing, social animal who’s attached to you both, your pet may do very well spending two weeks in one home followed by two weeks in the other, for instance. But a more timid or fearful animal, or locations that would require long travel to and fro, may make such an arrangement less-than-ideal for everyone involved.

Keep in mind that if you decide on joint custody of a pet, you’ll also need to agree on who will be responsible for veterinary care and other costs and making decisions related to health care, travel and other relevant issues.

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Put Your Pet First

Ideally, pet owners will put the needs of their pet, first, in deciding on who will care for the animal after divorce, much like they would do for a child. And speaking of children, you should also consider their wishes in the matter, assuming they’re bonded with your pet. Some people even allow the dog to travel back and forth between homes along with the children.

Ultimately, it’s important to put the needs of your pet first, even before your own emotions on the matter, and stay practical. If you love your pet but know you’ll be travelling often or gone for eight hours a day, while your ex may be at home more often, it may be best to give up custody.

Be honest, too, about whether you’re ready to take on the demands — time wise, emotionally and financially — of pet ownership as a single person.

It’s best if pet owners can decide amicably where, and with whom, their pet will live, but if that’s not possible then you will have to take it to the courts. Unless you live in California, Illinois or Alaska, courts may simply give ownership of pets to whoever paid the fee to adopt or purchase the animal.5

In 2014, the American Academy of Matrimonial Lawyers conducted a survey revealing that 25 percent of attorneys had seen an increase in pet custody disputes while 22 percent said such cases were being allowed in the courts more often. So it’s clear that many people aren’t content to give up their pet like they would a television. As noted by Matthew Liebman, Animal Legal Defense Fund Director of Litigation:6

“Courts routinely make custody decisions for children and other dependents after weighing evidence about which home will provide the best life for them.

The determination is made by identifying and then evaluating the relevant factors in an effort to promote the individual’s physical and mental well-being to the greatest extent possible. Virtually identical concerns and principles are present in custody cases involving companion animals.”

Indeed. If you and your former spouse cannot agree on who will care for your pet, you can always hire a lawyer to negotiate a private custody agreement on your behalf.