Pets are People Too

Fun Fact: In her divorce from Johnny Depp, Amber Heard got custody over the couple’s 2 Yorkshire terriers, Pistol and Bo (the subjects of the dubbed Terriergate in which Heard faced criminal charges for sneaking the pooches into Australia illegally). She also got a horse named Arrow.

Custody battles over pets aren’t just for the rich and famous. And while most of us don’t risk criminal charges, today pets are far more part of our families than ever before. They’re our emotional support animals on planes. They dine in restaurants, stay in hotels, and make frequent appearances on Zoom conferences.

It’s no wonder that, when a marriage breaks up, there might be a fight over who gets to keep the pets. But did you know that, legally speaking, pets are considered personal property? This means that a court can only award a pet to one spouse or the other, much like your car, sofa, or favorite piece of artwork. To grant shared custody or visitation of a couple’s pets would be the same as having them trade their TV back and forth from one week to the next. Not going to happen.

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I’ll love my dog until the day I die. He’s loyal, loving, and doesn’t wake me up snoring.

I wish I could say that about my spouse.

-Whitney A., Boston

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Good news is some courts are beginning to see things differently. Recently, a few states (including California, naturally!) have passed laws giving judges room to consider an actual shared arrangement for pets, more like what they do with children. A similar bill is going through New York right now. According to the NY legislature, its purpose is “to ensure that the best interests of pets are taken into consideration during divorce or separation proceedings.” The best interests of pets - don’t you just love that?!

If custody of your pet is at issue, and you don’t live in a state that’s yet enacted pet custody laws, what can you do? Here are a few things that might help:

1. Consider mediation to resolve custody of your pet (along with all other issues in your divorce). In a divorce settlement, you’re generally free to do whatever you want; even if it’s not something a judge could have done on their own. In a pet custody agreement, you can be general (like only stating where your pet will live), or specific (like a detailed visitation schedule for the other party, with times and places and who does the transportation, a right of first refusal if the custodial “parent” will be traveling without the pet, and who pays for things like grooming, boarding, and vet bills).

2. Get a Pet-nup! Laughter aside, a pet-nup is pretty much what it sounds like: an agreement that outlines the arrangements for custody and care of a pet in case a couple separates. Yes, you might spend a few hundred dollars having one drafted. That’s a hefty price for many. But if you can afford it, you’ll spare yourself a lot of time and aggravation fighting over custody of your 4-legged companion in the end. (We don’t mean to sound dog-biased. Research shows that pet custody battles are most common among dog and cat owners, followed by horses, rabbits and guinea pigs.)

3. Make a factual case for why you should be the one to keep the pet (or at least have “primary custody” if that’s what you want. Think about some of the same things you’d think about for child custody: who typically feeds your pets, takes them on walks, to the vet, and on play dates (err, to the dog park). Whether it’s the judge, mediator, or just your own attorney, these facts might help you make a creative argument about why it’s best for your pet to live with you.

4. Don’t forget about non-marital property. Did you already have your pet before you got married? If so, you might not need do more than prove that fact. Again, under traditional divorce laws, pets are personal property. Which means that, like other property, you get to keep what you had before the marriage.

5. Consider split custody (but only if it’s best for your pets). In child custody, judges are often reluctant to split up the kids. They might be less so when it comes to your pets however - especially if you and your spouse were each closer to one pet over the other.

6. Minimize the tension at pet exchanges. Can’t stand the thought of having to see your ex every other weekend during pet exchanges? Enter the dog walker. For $15-20, your pet gets some extra exercise and you get a little more peace in your life. Sounds like a win-win.