Who gets possession of the family pet(s) in a divorce?

by Houston Divorce Attorney Sam M. “Trey” Yates, III

Sixty-eight percent of the U.S. households, or about 85 million families, own a pet, according to the National Pet Ownership Survey conducted by the American Pet Products Association in 2018. And spending on those pets increases each year. One estimate puts our pet spending for food, supplies, vet care, medicine, grooming and boarding at about $69 billion annually. So it should come as no surprise to conclude that most pets today are treated much more like “family members” than they may have been in years past.

So, when a family is facing divorce, what happens to their pets after divorce is usually a big deal. And who get custody of such pets can get complicated, contentious and expensive in a hurry.

While some states are enacting laws that specifically address pet custody issues, most deal with the challenge on a case-by-case basis. Generally, pets are still primarily viewed as property in the U.S. (and many other jurisdictions), and it sometimes comes down to whether the judge in question is willing to deal with the pet problem.

At the very least, let your divorce attorney know early in the divorce process if custody of the pets could become an issue. Couples would be wise to try to work out an arrangement themselves and develop a custody plan that makes sense for everyone. This will save time, energy and funds best used elsewhere in the divorce process. The following guidelines may help.

• Since many courts view pets as personal property, whoever can prove he or she brought the pet into the marriage and provided primary care for the pet during the marriage, may have a better chance of keeping the pet. However, this person may actually be required to reimburse a spouse for some of the cost of care during the marriage if he or she is awarded the pet.
• Generally, if the couple has young children and a pet, it may be in the best interest of both if they remain together. If child custody is shared, consider sharing the pet on the same schedule. This will likely work best for dogs, but not usually for cats who tend to bond more closely with their environments.
• Evaluate each spouse’s schedule and living arrangement up against the well-being of the pet. Does one travel a lot for work? Who has a more predictable schedule? Who has a shorter workday? Are both spouses living in places where pets are allowed? Does one have more outdoor space for the pet? Is one spouse more able to take care of the pet because of a work schedule?
• Can both spouses demonstrate the financial ability to support the pet?
• Consider the health and age of the pet. Like people, pets can suffer from the stress of a divorce and moving to a new environment that may not be ideal for them. Ask your vet to weigh in on this question as to what may be best for your pet.
• Decide in advance who will be responsible for pet-related expenses, particularly for emergency and vet care.
• Factor in a spouse’s motives. If he or she never cared for the pet but is suddenly pushing hard for custody, bring this to the attention of your divorce attorney. If domestic abuse was present in the marriage, this could be a power play to control or manipulate the formerly abused spouse, or used as a threat against the pet. Work with your attorney to carefully develop a legal argument and present evidence that shows the pet is being used as a bargaining chip in the divorce.
• If you are trying to get sole custody of the pet, you should provide evidence to the court as to why you are the best choice. Show proof of financial ability, receipts for pet care, a plan for pet care if you are hurt or sick, a letter from your vet that states you bring the animal in for well visits, letters from neighbors who see you walk the pet and play regularly with the pet, and show evidence that your schedule permits you to spend more time with the pet. If the spouses are already separated, and one spouse keeps the pet, the court may find the current custody as evidence that this spouse is truly the primary care taker.