What Happens to the Family Pets in Divorce?

AvatarErik Arena, Principal

The American Veterinary Medical Association reported that, as of 2016, about 57% of American households have a least one pet among their family. While the number, species, and breeds vary widely from home to home, most of us become quite attached to our furry, scaled, or feathered companions – so much so that we consider them family. 

So what happens to the family pet upon divorce if you and your spouse do not agree to a custody arrangement? Let’s just say the courts won’t treat Fido like a member of your family.

Pets are Treated Like Objects – Not Beings

While the laws on this topic vary widely from state to state, Maryland and the District of Columbia treat pets similarly, and not kindly. Pets are seen as property, if recognized at all, and awarded to one spouse or the other as such. This means whichever spouse is deemed the legal owner ends up with exclusive control and responsibility of and for the pet.  This also means the other spouse may never see their pet(s) again. 

How is it determined who is the legal owner?  Sometimes it can come down to something as simple as whose name is on the adoption or purchase paperwork.  Or who paid the adoption fee. 

Other states such as Alaska, Illinois, and California treat pets like beings and award custody to the pets based upon a best interests standard.  Something comparable may soon be forthcoming in the District of Columbia. Nothing comparable is on the horizon in Maryland to date. 

You Can, However, Reach Agreements Sharing Custody of Pets and Pet-Related Costs

There is no limit to the imagination you and your spouse can apply to pet agreements, if so inclined.  And once consummated, those agreements will be honored and enforced by our courts.  But not modified. 

What might such an agreement include?  It could include, among other terms:

  • Custody and access provisions (i.e., when the pets will be with which spouse and/or the children, if any)
  • What will happen to the pets if one spouse relocates
  • A right of first refusal allowing a former spouse to care for the pets if the other is unable or unavailable
  • Provisions concerning introducing and/or integrating the family pets into households with other people and/or pets (i.e. allergies, incompatible animals, animals incompatible with small children, etc.)
  • Health insurance and payment of uninsured medical costs
  • Advanced medical care planning

Again, the sky is the limit as far as what you and your spouse might deem appropriate for your pet family members. 

Given what may unfold upon divorce if you and your spouse cannot agree, some find it prudent to execute pet-nuptial agreements at the time they purchase or adopt their family pets. That way, they can provide for the types of arrangements outlined above in Section 2, to assure themselves are role in their pet’s lives beyond their own relationship.