Pets are our family. It’s a fact of life now. However, the law still hasn’t caught up to this sentiment, and most states still treat pets like property. This means that when you get a divorce, most states will not consider the well-being of the pet but instead rely on property division principles to determine who should get the pet. This (as you can imagine) can be incredibly hard for pet owners, especially if the pet ends up in the wrong hands. However, there’s a solution! Pet custody clauses in a prenuptial and/or postnuptial agreement. So, let’s get into everything you need to know about pet clauses in your postnup.
Pet custody clauses in your postnup
Yes, you can create a “pet custody” agreement with your spouse in a postnuptial agreement. You can lay out who gets ownership of the pet and who is responsible for vet costs, food, toys, doggie daycare, etc. For ownership, you can choose one person to take total ownership, or you can do a shared custody arrangement where both spouses share the pet 50-50. Along with pet ownership comes financial responsibility, so you may also lay out who is responsible for the costs. For example, if you are doing shared custody, are you also sharing the financial responsibilities?
Financial responsibility clause in your postnup
If you go the shared custody route, you’ll want to determine who is responsible for the costs. Here are some of the various costs you will want to consider:
- Routine vet bills for vaccines, check-ups, etc.
- Specialty vet bills for specific care
- Medical procedures and/or surgeries
- Medications
- Pet sitters for miscellaneous needs
- Routine pet care, such as daily doggy daycare or dog walkers
- Food and treats
- Toys
With this in mind, you’ll want to decide if one person is taking on the full financial responsibility, if you’re splitting the costs 50-50, or some other creative way to share costs.
Pet medical decision-making clauses in your postnup
A sad fact is that our pets get sick, and we need to make important decisions about their well-being, such as whether or not they need to be put down. If you are sharing custody with an ex-spouse, who makes this decision? This can cause heated disputes if not determined beforehand in an agreement such as a postnup. This is typically only relevant if you are sharing custody of the pet because if one person is getting complete ownership, then the other person won’t have any rights or control over the pet anyway.
Pet custody schedule
Another thing to consider if you want to split custody of a pet is the schedule. Will one person get the pet on the weekends? Will it be the first two weeks of the month vs. the second two weeks of the month? What about holidays? What if one ex-spouse is going on vacation–should the other co-pet parent take the pet, or should they find a pet sitter? All of these questions can be answered in a pet custody agreement within a postnup.
What happens if you don’t have a pet custody clause in place and you get a divorce?
You may be wondering if this is even necessary and what your state law says on this topic. Great question! So, for starters, every state is going to be different. What the law says in California may be completely different than what’s required in Oklahoma.
With that said, there are only a handful of states that treat pets with a higher respect than just property in divorce cases. These states include:
- California (Cal. Fam. Code § 2605),
- Alaska (Alaska Stat. § 25.24.160),
- Illinois (750 ILCS 5/503),
- Massachusetts (Lyman v. Lanser, 231 N.E.3d 358 (Mass. App. 2024)),
- New Hampshire (N.H. Rev. Stat. § 458:16-a),
- New York (N.Y. Dom. Rel. Law § 236(B)(5)(d)(15)),
- Vermont (Hament v. Baker, 196 Vt. 339 (Vt.,2014))
The vast majority of the other states will simply apply basic property principles to your divorce and appoint ownership of the pet to one person. These principles usually include who purchased the pet, whose name the pet is under, who has had possession of the pet, etc.
How to include pet custody into your postnup
You should start by speaking with your spouse to come to an agreement about how you would want to handle pet custody in the event of a split. You can discuss whether one person would keep the pet or if you would do a shared custody arrangement. From there, if you decide on shared custody, you’ll need to also determine who is responsible for the financial obligations, such as vet costs, medicine, food, toys, doggie daycare, pet sitters, etc.
In addition, you’ll want to discuss who will be responsible for making medical decisions, such as when to put the pet down or have major surgery. With a shared custody arrangement, you should also consider including visitation schedules. Schedules can also be pinned for later since it’s hard to imagine what your schedule will be like in a theoretical future divorce. But having some kind of schedule in place can be a good starting point, too. It’s all up to you!
A quick note on postnup enforceability
There are several states that do not allow postnups at all. They do not enforce them. So, if you get a postnup in one of these states, your pet custody agreement won’t be valid, and you may want to consider doing a standalone pet custody agreement, which may or may not work in the state. You’ll need to contact a lawyer to discuss your options. Here are the states where postnups are less likely to be enforced:
- Iowa (Hansen v. Hansen, 924 N.W.2d 873 (Iowa Ct. App. 2018)
- Oklahoma (Hendrick v. Hendrick, 976 P.2d 1071 (Okla. ct. App. 1998))
- Nebraska (Devney v. Devney, 886 N.W.2d 61 (Neb. 2016))
- Indiana (You can only get a postnup if your marriage is broken down) ( Flansburg v. Flansburg, 581 N.E.2d 430 (Ind. Ct. App. 1991))
- New Jersey (You can only get a postnup if your marriage is broken down) (Steele v. Steele, 467 N.J. Super. 414 (App. Div. 2021))
In the other states not listed above, postnups are possible, but they may be subject to greater scrutiny, making them slightly harder to enforce than a prenup. Speak with a lawyer to determine if putting a pet custody agreement in a postnup makes sense for you under your state laws. An alternative would potentially be a standalone pet custody agreement (which, again, you should speak with a lawyer to understand if this is possible in your state).
The bottom line on pet custody in postnups
The bottom line is that pet custody clauses can be included in a postnup, depending on your state. If you are able to put pet clauses in a postnup in your state, then you’ll want to consider shared vs. sole custody, financial responsibility, decision-making power, and schedules. We can all agree that our pups and kittens are treated like family, so their well-being should also be considered and protected.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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