May 2022 Monthly Tip – Custody Battles can be Fierce…over the Pets: Protect Pets in Divorce

Our Monthly Tip, as featured in Family Lawyer Magazine: 

In celebration of national pet month, let the month of May serve as a reminder to protect our beloved four-legged friends. It should come as no surprise to animal lovers that the majority of pet owners (85% of dog owners and 76% of cat owners according to an American Veterinary Medical Association Pet Ownership and Demographics Sourcebook) consider their fuzzy friends to be members of the family. Unfortunately, disputes over who retains custody of the cherished pet can become contentious during divorce or separation proceedings. Will one spouse keep the pet exclusively or will ex-spouses share custody? Who will pay the vet bills? Don’t leave the answers to these questions up to your state’s potentially antiquated laws or to a judge. Craft a plan with your advisors to ensure that your beloved pets are well taken care of in the event of separation or divorce.   

Recently, several states across the country made headlines by enacting pet custody laws, changing the standard for determining who gets the pet from a traditional strict property analysis to one that takes into consideration the well-being of the animal. This elevated standard can require courts to consider the best interest of the animal when awarding possession during divorce or separation proceedings. The “best interest” standard is the same standard used to determine child custody issues. Courts may inquire into who owned the animal first or whether it was purchased together, who assumed most of the responsibility for the pet’s care and spent most time, the best living arrangement for the pet and, if children are involved in the care of the animal, the nature of their attachment to the pet. Currently, six states (Alaska, California, Illinois, Maine, New Hampshire and New York) have pet custody laws and one state (Rhode Island) has legislation pending.

However, the vast majority of states do not have pet custody laws and oftentimes pets are treated as property during divorce or separation proceedings, although a more modern trend has been for courts to consider the special relationship between pet and owner. During such a tumultuous time, it can be heartbreaking for pet owners to learn that their precious pet will be treated the same way as a car or furniture in the court’s eyes, but careful planning can help prevent this emotional anguish. If permissible under your state’s laws, consider inserting pet custody designations into prenuptial, postnuptial or settlement agreements. While the decision will likely ultimately turn on a judge’s discretion, courts may consider written legal agreements in pet custody disputes. In addition to custody, consider including factors such as visitation and pet expenses in an agreement to address questions such as how vet and grooming expenses will be paid and if the non-primary caretaker will have visitation rights with the pet after divorce. 

The breakdown of a marriage is very stressful and emotional. Avoid added potential heartache over the pets by working with trusted advisors to proactively plan for your beloved pets’ future.  

Please visit our Matrimonial and Divorce Advisory Solutions resource page for more timely divorce planning content.

This article is for general information only and is not intended as an offer or solicitation for the sale of any financial product, service or other professional advice. Wilmington Trust does not provide tax, legal or accounting advice. Professional advice always requires consideration of individual circumstances.