If you are thinking about filing for divorce or are already knee-deep in divorce proceedings, one of the first questions you may ask yourself is, “What happens to our pets?” This is an important question! Pets are truly members of the family, with a poll from 2006 showing that most people with pets would not trade them for even one million dollars. How sweet!
Post-pandemic, pets are more popular than ever. The COVID-19 quarantine loneliness got to people, and many folks opted for pet parenting to soothe their coronavirus woes. About 40% of California households have at least one dog. That means that at least 5.2 million California households have dogs (and probably more if you are counting cats, birds, fish, and other animal kingdom friends). With so many household animals in the state of California, it begs the question: what happens to the dog in a divorce? You can’t ask the pet who they want to live with (obviously, unless you have a treat in your pocket!) So how does a judge possibly decide who gets to keep Fido? What about a California “petnup“–can you include what happens to your pets in your prenups? These are all topics we will discuss. Let’s dive in!
Legal History of Pet Custody
The unfortunate legal and societal history of pets in the United States is that they haven’t always been treated like part of the family. In fact, an extremely old case from the U.S. Supreme Court, Sentell v. New Orleans & Carrollton R. Co., 166 U.S. 698 (1897), shows us exactly how pets used to be treated. The Supreme Court, in that case, declared dogs as “worthless” and even stated that, if unclaimed, dogs may be killed. Thankfully, the view on animals has come a long way since that case. However, in many states, dogs are still considered personal property. That’s right, in a divorce, a dog may be treated akin to a precious lamp or couch. Don’t worry, though; courts are no longer calling them “worthless” or ordering killings if not claimed.
The majority of states are actually still following the principle that pets are property when it comes to divorce. Meaning that in a divorce, many state courts would apply the same principles in assigning ownership to a lamp as they would a dog. That’s right, in many states, pets are earmarked with a dollar amount and then assigned ownership based on state law regarding personal property. Luckily for Californians, that is no longer the case during the pendency of a divorce. Keep reading to learn more about how California law is transforming into a more humane method of pet ownership.
CA Pet “Custody”
Pet custody is a non-legal term for deciding who has possession of the pet, just like child custody. Before 2019, pets in California were only considered personal property. Whoever purchased or adopted the pet was typically considered the owner for divorce purposes. Sometimes the court would make a judgment call on the pet and award it to who was the better fit. But there was no such thing as joint or sole custody or visitation schedules for pets–one person and one person only was awarded ownership. Just like you wouldn’t give a lamp a visitation schedule, the California law (prior to 2019) saw no need to provide visitation or custody arrangements for a pet. That all changed recently!
In 2019, a new California law was enacted to address pet “custody” during a divorce. The new law gives CA divorce judges the discretion to decide who should care for the pet during the pendency of the divorce. Judges make this decision by taking into consideration the well-being of the animal. This means that the court will now consider your furry friend’s best interest.
So, how does a judge determine what a dog’s best interest is? A court will analyze various factors about your specific case. Here are some examples of what a judge may look for in determining pet ownership:
- Who usually feeds the pet?
- Who usually walks or plays fetch with the pet?
- Who usually takes the pet to the vet?
- Who is registered as the pet’s official owner?
- Who has a better home environment for the pet (bigger yard, more space, etc.)?
- Who is more emotionally connected to the pet?
- How is the pet’s health, and who is best equipped to handle it?
At the end of the day, it will be a discretionary decision made by the judge based on what they believe is best for the pet during the pendency of the divorce. It’s best practice to gather as much evidence as you can regarding these factors. For example, you may want to start saving statements from vet visits, doggie day care, or food bills to support you in your quest for custody.
Keep in mind this new law applies to the ownership of the pet during the divorce proceedings. After the divorce is final, the judge will likely still apply property division rules or make a judgment call on who the animal should live with.
What about my hamster?
We’ve been talking a lot about dogs, but what about other creatures? The new California law specifically says “pet animal,” which means “any animal that is community property and kept as a household pet.” Remember, “community property” just means the shared, marital property you have acquired during the marriage and not as an inheritance or gift or a pet purchased before marriage. “Household pet” likely means exactly what it sounds like: dogs, cats, birds, hamsters, lizards, fish, etc. Any animal that you keep in your house as a pet.
So, what about my fish that we purchased right after the honeymoon? Well, a fish will most likely be considered a “household pet” and be covered by this new California law. That’s right– you may be able to get a visitation schedule for your fish. What you probably cannot do is get a visitation schedule for your farm goats, chickens, or other non-household animals. That is because the CA law only covers “pet animals” and not farm, wild, or exotic animals.
Financial Support for Pets
What about financial support for a pet in the event of a divorce? Those vet visits and dog food can get quite costly these days! It makes sense that you’d want to know who bears the burden of those costs. The court may decide that one party or the other is responsible for payment of the pet costs, or it may require that both spouses are equally financially responsible for the pet.
CA Pet Prenups
Everything discussed thus far has been about what happens in your divorce if you do not have a prenup in California. But what about if you had a pet prenup in place? Are you allowed to include prenup clauses about pets in California? Pets are more than a piece of property; they’re practically a real child with food preferences, emotional needs, vet bills, and other miscellaneous costs. It makes sense that couples would want to decide who will be the one to get the pet should they separate.
In California, you may include provisions in your prenup regarding the ownership and economic support (i.e., vet bills, dog food, doggie day care, etc.) of your pet. You can delineate if one person will have sole ownership, if you will share custody, or if there will be visitation schedules involved. However, there is one stipulation to keep in mind about
CA pet prenups. In the end, the judges have the ultimate power to decide what is best for your pet. If your pet provision is not what the court considers to be in Fluffy’s best interest, then the court might ignore it and do what it thinks is best.
As you can see, the goal of California’s new law surrounding pet ownership during the pendency of a divorce is to protect the pet and make decisions for the pet based on its well-being. A judge will utilize various best-interest factors to determine who Fluffy will live with, whether part-time or full-time. This is a progressive step for animals, as pets have historically been treated as personal property, getting the same legal treatment as a lamp or a chair.
Remember, this new law is not only for Fido but your hamster and other household pets will also be covered by the CA pet law. And as for CA “petnups,” you can create a prenup to pre-determine the ownership of your pet and the financial responsibility, but beware that it can be invalidated by a judge if it’s not in the pet’s best interest.
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Raymond Hekmat’s practice of law has been devoted exclusively to areas of California family law focusing on prenuptial agreements, divorce consulting and mediation, since earning his Juris Doctorate degree from Loyola Law School in 2009. During his tenure at Loyola, Raymond was President of the Evening Bar Association, and was awarded the Alumni Association Governors’ Alumni Award. While earning his degree, Raymond worked as a law clerk, and later an associate, for a Beverly Hills family law firm. Prior to founding HLM, Raymond’s practice involved complex family law litigation involving high-asset property division, complex custody litigation, jurisdictional issues, division of community estates and prenuptial agreements.