You went on road trips and long walks together. You snuggled on the couch at the end of a long day. They were your source of comfort during the pandemic. While all of those might describe a spouse, for pet lovers, those sentences also describe their furry companions. If you have a pet, you might not think of yourself as a pet “owner,” but as a pet “parent.” How do plans to divorce and dissolution affect that relationship? Put another way: who gets pet custody in a divorce?
It may sound silly to people without pets, but pet custody is an increasingly prevalent—and contentious—issue in divorces. Many people love their pets like children, but most states (including Ohio) treat pets as personal property to be allocated in a divorce. As a general rule, that means that divorcing couples are usually better off reaching their own resolution regarding pet custody than leaving it to a judge.
Deciding Who Gets the Pets in a Divorce
A very small (but growing) minority of couples plan ahead for the possibility of pet custody issues with a “pet prenup” or “pet-nup” agreement. Agreements about pets in divorce, dissolution, and separation can be contained in a more general prenuptial agreement or in a stand-alone document. These agreements can dictate not only who will become the pet’s primary caretaker after divorce, but visitation schedules and how the pet’s expenses will be allocated.
If planning ahead for pets in divorce wasn’t on your mind as your wedding day approached, don’t feel bad; you’re certainly not alone. But that means you will need to make some difficult decisions now. No matter how difficult it is for you and your spouse to communicate, it’s important to remember that the two of you can make better decisions for your pet than a judge can. It’s worth trying to figure it out together.
That doesn’t mean that you have to figure it out on your own. Alternative dispute resolution (ADR) methods like mediation and Collaborative divorce can provide you and your spouse with the support you need to make this important decision. ADR helps parties to a dispute to “think outside the box” and identify their own “win-win” solutions that may not be within a court’s flexibility or creativity. Domestic relations lawyers are used to negotiating, and can certainly include pet provisions in separation agreements.
You can also consider pet custody options that have worked for other people. A common solution for couples that also have young children is for the pet to travel with the kids. Not only does this provide a sense of continuity and a feeling of “home” for the children at both parent’s houses, it also gives both parents periodic freedom from both child- and pet-related responsibilities.
Pet owners and pet parents with different work schedules and nearby residences may decide to have one person keep the pet while the other is on the job, and vice versa. This can be a win-win for the pet (less time alone in the two houses) and for owners, who don’t have to worry about their pet being lonely or destructive. As with children, visitation arrangements can be tailor-made to fit the owners’ work schedules and availability. Also as with children, arrangements regarding responsibilities to attend to regular veterinarian well visits, as well as expenses for medications, surgeries, treatments, doggy daycare, and the like can be addressed in an agreement.
Some pets adjust readily to bouncing back and forth between residences; for others, the constant change can be stressful. In general, dogs are more flexible in this regard than cats. Pets may not be children, but as with deciding child custody, it’s still important to put their needs first. You know your pet’s temperament and tolerance for disruption of routine. If moving back and forth between homes is likely to stress your pet out, it may be ideal to choose one home for them, hard as that can be, and provide meaningful time for the other pet parent.
In some cases, when it’s not desirable or practical for former spouses to share pet custody, they agree that the spouse who takes the pet will pay the other spouse’s adoption costs and associated costs for a new pet. While one animal can’t just replace another, it’s an opportunity to form a new bond, and having someone else bear some of the costs is a bonus.
If there are multiple pets, each spouse might agree to take one. However, if the pets are bonded to each other, it’s probably best not to separate them. Again, regular contact with the people and other pets from the other household can be worked out.
When a Court Decides Who Gets the Pets in a Divorce
If you and your spouse absolutely can’t reach agreement about pet custody, it’s going to be up to the court to decide. If you’re lucky, you’ll have a judge who also has and loves a pet and is sensitive to the issue. Some questions the court may consider:
- Was one spouse more responsible than the other for the pet’s daily care, such as feeding and exercise?
- Which spouse took the pet to the veterinarian?
- Was the pet more bonded with one spouse?
- Was either spouse ever neglectful of, or abusive to, the pet?
- What kind of home environment will each spouse be able to provide for the pet after divorce? (For instance, if one person has a small apartment, and the other a house with a fenced yard, the latter might be better for an active dog.)
- Will one spouse be around more after the divorce to take care of the pet? (For example, one spouse might have a job that involves a lot of travel, while the other might work from home.)
Regardless of how a court decides on the issue of pet custody, it’s important to recognize that the process of litigating custody of a pet will probably cost hundreds, if not thousands, of dollars. Resolving this issue yourselves, if at all possible, is probably much better for both you and your pet.
To learn more about how to decide who gets the pets in a divorce, or to get help with a pet custody issue, contact Melissa Graham-Hurd and Associates to schedule a consultation.
