Introduction to Pets in Divorce Proceedings
When it comes to pets, the law is fairly clear on how pets are viewed – and that is pets are property. If you are a pet owner, it is more likely than not you view your pet as a member of the family, or even as a child. When a couple goes through a divorce, and pets are involved, it can be incredibly stressful and different laws will apply to the pets – even though the couple may consider the pet family. A small minority of states will consider the emotional attachment of pets during a divorce proceeding, but the majority of states will treat the pet as a piece of property. Like many issues in family court, it is better to settle outside of court so both parties can be involved with the decision making process. This will be especially true when deciding where the family pet will live.
Pets in the Law Generally
In the majority of states, pets are considered personal property.[i] During the divorce proceeding, there are a few ways of dividing up personal, or tangible, property but deciding how to divide the family dog is a little more difficult than deciding who is going to get the couch in the living room or the table in the dinning room. Despite this, the courts still consider dogs in this category. Often times in divorce proceedings, unless the property is incredibly valuable, parties go back and forth and chose items they want to keep.[ii] The parties do their best to keep things even, and divide each room of the house evenly in some way.
When it comes to pets, especially families with one pet that is not an easy task. Even families that have two, or four pets, it is still difficult to determine where that pet will be going. For this reason, and many others, many animal rights activists have been fighting for the courts to recognize that pets should be treated differently than property, at least during a divorce or separation proceeding. To the majority of families with pets view their pets as part of the family, so deciding where the couch goes is inherently different than where the family dog will go.
In many cases, one party had the pet prior to the marriage. In those cases, just as separate property is treated in division of assets, the court will award that party the pet. This is similar to step parent situations in a divorce. Unless the stepparent adopted the child, the court is unlikely grant a custody arrangement for a minor child with a stepparent. A parenting arrangement can nonetheless be worked out, but a court is not going to make that decision for the parties if the natural parent is in opposition.
Pet Custody in Alaska
Alaska has become the first state in the United States to consider pets as more than property.[iii] Alaska is the first state to enact pet-custody legislation, which allows the court to consider the well-being of the animal.[iv] The legislation in Alaska defines the pets as “vertebrate living creature, and not a human being”, which is still a step up from considering the animals as inanimate objects.[v] This legislation also permits the judge, an even encourages the judge, to consider custody arrangements for the pet and what would be best for the pet.[vi]
When it comes to deciding custody arrangements for children in a divorce, or even when parties separate, the judge has to consider the best interests of the children. This involves looking at who the primary caregiver is (if there is one), which parent works and what their schedules look like, which parent the child has a stronger relationship with, and many other factors. It is a very complex decision to make, if the parents cannot agree to a custody (or parenting time in Arizona) arrangement for the children.
The same will be true for pets in divorce proceedings where the parties cannot agree on who will take the pet. If both parties want to keep the pet, the court – at least in Alaska – will consider many similar factors when deciding where the pet should go. These factors likely include who primarily takes care of the pet.[vii] For example, if one party always takes the dog on their walks, feeds the dog, cleans up after the dog, and takes the dog to the vet – the court will likely find that party has provided more for the dog during the relationship. This would be akin to the primary care giver for a human child. Another factor that the court would consider would be the work schedules of the parties. If one party is a stay at home parent, and spends lots of time with the pet, the court is more likely to give that party custody during the week than the other parent. In that situation, the court would likely give that party during the week custody and the other party weekend visits.
Considering how different pets are from human children, a lot of factors vary. While cats can be left home alone all day, even a few days at a time with some cats, dogs are more high maintenance in that respect. Human children can certainly not be left alone, but at a certain age, children start going to school. This allows parents to coordinate work schedules so the children are always being supervised. Unless a party pays for doggy daycare, the dog will sit alone all day at home if the party works a lot. Any number of arguments could be made to the judge about the situation surrounding that family’s pet and what that pet requires.
Conclusion to Pets in Divorce Proceedings
While Alaska may be the only state that has confirmed pet-custody legislation and clear guidelines for how to determine custody of a mutual pet, many activists predict other states will soon follow suit. In the United States, roughly 50% of households end in divorce.[viii] Also in the United States, roughly 62% of households have at least one pet.[ix] With those numbers in mind, its clear that many divorcing couples have pets, and need some way to determine where those pets will go when the divorce is said and done. Disputes over children tend to be very emotionally loaded, and are not always easy to settle. For many couples, disputes over pets are no different than disputes over children
[i] See Who Gets Pet Custody in a Colorado Divorce? Goldman Law PLLC (Published Nov. 2, 2015) http://goldmanlaw303.com/who-gets-custody-of-the-pets-in-a-colorado-divorce/
[ii] See Dividing Your Property During Divorce
[iii] See Karin Brulliard In a First, Alaska Divorce Court Will Now Treat Pets More Like Children The Washington Post (Published January 24, 2017) https://www.washingtonpost.com/news/animalia/wp/2017/01/24/in-a-first-alaska-divorce-courts-will-now-treat-pets-more-like-children/?utm_term=.db825cdfc1f6
[iv] See Christopher Mele When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.) The New York Times (Published March 23, 2017) https://www.nytimes.com/2017/03/23/us/divorce-pet-custody-dog-cat.html?_r=0
[v] See Karin Brulliard In a First, Alaska Divorce Court Will Now Treat Pets More Like Children The Washington Post (Published January 24, 2017) https://www.washingtonpost.com/news/animalia/wp/2017/01/24/in-a-first-alaska-divorce-courts-will-now-treat-pets-more-like-children/?utm_term=.db825cdfc1f6
[vii] See Who Gets Pet Custody in a Colorado Divorce? Goldman Law PLLC (Published Nov. 2, 2015) http://goldmanlaw303.com/who-gets-custody-of-the-pets-in-a-colorado-divorce/
[viii] See Jeff Landers How are Pets Handled in Divorce Forbes (Published April 17, 2014) https://www.forbes.com/sites/jefflanders/2014/04/17/how-are-pets-handled-in-divorce/#6bb884096304