Many pet owners treat their beloved animal companions as if they are their children. But in the event of a divorce, who gets to keep the family pet?
According to a 2014 survey conducted by the American Academy of Matrimonial Lawyers, pet custody are on the rise. Dogs are considered the most disputed family animal at 88 percent, while cats are a distant second with a five percent total. Additionally, 22 percent of the lawyers have said that courts are more frequently allowing pet custody cases and 20 percent cited an increase in courts deeming pets to be an asset during divorce.
In California, pets have typically been considered personal property, which makes them subject to the factors that determine how property will be divided between the divorcing couple. This means that the court will not, nor do they have the ability to, grant custody rights of the pet to either spouse.
The court will only decide ownership of the animal and will not take the animal’s best interest into account. Factors to consider when determining ownership include when the pet was purchased (i.e. before or after marriage), who is responsible for food and shelter, who financially provides for their medical expenses, who spends the most time with the pet, etc.
With regards to custody, the best option to ensure that who gets the family pet after a divorce is to draft an effective prenuptial or marital agreement that clearly states who receives ownership of a pet and how high-cost items, such as vet visits, will be divided. These types of agreements can result in a fair distribution of marital property, including a determination of pet ownership.
Additionally, divorcing couples can create an informal shared custody arrangement that allows your ex-spouse to regularly see the animal. Pet owners can go to mediation and have a neutral third-party help them reach an agreement.
However, if a party is the victim of domestic violence, California now has a law (California Family Code Section 6320) which protects domestic animals if there is a reason to believe one of the parties may cause harm to the pet. Furthermore, in marriages involving domestic abuse, pets can be included in domestic violence restraining orders.