Pets and Divorce – What Happens to Fluffy Without a Prenup?

Nov 9, 2022 | Clauses, Divorce, Prenuptial Agreements

When going through a divorce, it’s easy to get wrapped up in emotional stress and forget the practical details. One of the essential things to consider is what will happen to your pets if you and your spouse split up. Especially if you don’t have a pet prenup in place.

 In today’s society, pets are members of the family. In fact, according to a 2006 article, Bones of Contention: Custody of Family Pets, a poll showed that most pet owners would not trade their pets for even $1 million in cash. This reiterates the notion that pets are treated like children and given the same love, care, and affection. And just like children, pets have become essential to our lives. But when a couple divorces, who gets “custody” of Bella or Max? That question has plagued couples for years, so let’s take a look at some of the potential outcomes. Note that we use the term pet “custody” to mean pet ownership. Pet custody is not a legal term; simply an easier way to express who gets to keep the pet.  

What if you don’t have a pet clause in your prenup, or worse, no prenup at all? 

Having a prenup and a pet clause within it can help you and your spouse decide how to deal with what happens to your pet if you divorce, both in terms of custody and financial responsibility. Without a prenup (or “petnup” as we call it), and if you two can’t agree on it yourselves, you leave the decision up to the judges for the fate of little Bella. Courts will apply state law, so what happens will vary depending on your state. Read more on pets and prenups here.

In short, in most states, pets are deemed personal property. This means that without a prenup saying otherwise, a pet will be treated as either marital or separate property when divvying up the assets in a divorce. However, trending law is on the rise to protect pets in a more humane way. States across the country are now adopting a more progressive approach that determines what is best for the dog’s well-being.

Varying state laws on pet custody

Depending on your state, there may be differing views on pet custody. Unfortunately, most states still abide by the “pets as property” rule, but that is quickly changing.

It’s no surprise that in 2019, California enacted a new law that allows the court to consider the “best interest” of the pet when deciding on divorce or separation issues. This new law also enables judges to award sole or joint custody of pets, including detailed shared custody agreements.

We can’t give Cali all the credit, though–Alaska and Illinois were the first two pioneers in protecting animals in divorce. Alaska and Illinois enacted their pet custody laws in 2017. In 2019, California became the third state to enact pet custody legislation. After California, many states followed suit, such as New York, Rhode Island, Pennsylvania, and Washington, D.C. That means that in just five years, more than six states have made a move towards more pet protection. That’s a win for animal rights! 

Don’t fret—if you don’t see your state listed here, many states are still trending towards a “best interest” take on pet custody, even without explicit legislation. Judges in Alabama, Connecticut, Arkansas, and Texas have all taken progressive stances on pet custody in divorce proceedings.

What about New York? Judges use a “best for all” approach instead of the traditional pets-as-property approach. This is not a new concept in New York; there are cases dating back to 1979 where judges have stated the importance of not treating pets like property. New York’s pet custody law looks at the animal’s well-being, similar to how the courts address child custody.

States that take a “best interest” approach to pet custody

What happens when you don’t have a prenup? Well, if you live in one of the states that looks to the pet’s well-being for pet custody decisions (and not like personal property), like California and New York, then there will generally be a set of factors that the court will use to make their decision.

Some of these factors may include, but are not limited to:

  • The safety and health of the pet
  • Who is responsible for the pet’s daily needs (think: feeding, water, walking)
  • Who is responsible for the pet’s veterinarian appointments and costs
  • Who has a stronger connection to the pet
  • Who purchased the pet

If you don’t have a prenup, a judge will consider various factors that play into the pet’s best interests in deciding who gets to keep Fluffy. For example, if Husband was the person to purchase Fluffy, feeds her and walks her every day, always takes her to the vet, and frequently refers to her as his “soul dog,” then there’s a good chance Husband will be awarded custody if his arguments are successful. The outcome depends on your specific circumstances and what you can show the court. 

Moral of the story? If you do not have a prenup and you live in a best-interest pet custody state, a judge will evaluate your life and decide which spouse gets custody of the pet (or you both may get custody!).

States that treat pets like property

What happens if you don’t have a prenup and you live in one of the states that do not take a pet’s best interest approach? Well, sweet little Max will get thrown in the mix with the car, house, and that signed Dodgers jersey you cherish. Keep in mind that most states currently treat pets like property. There are only a small group of states that have enacted pet custody laws to stop treating pets like property and start focusing on their well-being. 

For example, in states like New Jersey and Oregon, there are no pet custody laws enacted yet, and the court will likely treat your pet as personal property. Little Bella will be categorized as either separate or marital/community property. If she is categorized as separate property, she will not be considered part of the “stuff” that must be split up. Many states consider gifts, inheritances, or property acquired before the marriage to be separate property and not subject to division. On the other hand, marital/community property is the property you acquire during the marriage.

What does this mean for your pet? Remember, separate property is property acquired before marriage. So, let’s illustrate by example. Say Husband bought the cute little puppy, Max, one year before the wedding. However, Wife was and always has been the main caregiver before and during the marriage and has developed a deep connection with Max over the years. Husband would still likely be awarded pet custody because of the separate property rule since the dog was purchased by Husband before the marriage. You may be thinking, “how unfair,” especially because Wife has been doing the work and providing all the love to Max. That’s the reality of pet custody in states that apply pet-as-property rules. 

Lesson to be learned here? If you do not have a prenup and live in a pet-as-property” state, the court will treat your pup like a car or jewelry. This means the court will not consider your pup’s well-being but instead will decide based on typical property rules.

Real-world celebrity examples of pet custody battles 

There are two sides to every story, but when it comes to pet custody battles, things get even more complicated. You see, unlike children, pets can’t talk or write letters. Because of this, many pet custody battles end up in a mess. Let’s take a look at some real-life examples of what happens when couples split and need to decide on custody. 

Johnny Depp and Amber Heard 

We’ve all seen and heard of the very public Heard versus Depp defamation trial earlier this year. But, several years ago, in 2017, before the Heard and Depp defamation trial, the couple was in court to settle their divorce issues. They did not have a prenup in place–a big mistake! Among the many divorce issues at hand was who gets to keep Pistol and Boo, their two dogs. Heard was awarded the infamous $7 million she promised to give to charity, along with the custody of their two dogs. 

 Jennifer Aniston and Justin Theroux 

As an example of what could happen in an amicable divorce, Jennifer and Justin shared four beloved dogs and managed to work out a custody agreement. Jen keeps three of the dogs in L.A. and Justin keeps one in NYC. They even agreed on a visitation schedule! There was an allegedly ironclad prenup in place, but unclear as to whether there was a pet clause in it. Either way, good on them for making it work!

Hugh Hefner and Crystal Harris

Before Hugh and Crystal actually wed, they were engaged but called it off. They had a custody battle over their sweet little Charlie during the split. Divorce laws didn’t apply in this case since they were never married. Crystal ended up letting Hugh keep Charlie. How cordial!

Drew Barrymore and Tom Green

Ahh, the classic short-lived Hollywood marriage between Drew Barrymore and Tom Green (six months). The couple’s beloved Labrador retriever, Flossie, saved their lives in 1998 by walking them out of a house fire! In the divorce, the court awarded Flossie to Drew, despite a tough fight over who gets to keep their Hero dog.

Miranda Lambert and Blake Shelton

These two knew what they were doin’ by getting a petnup! Especially since they shared over eight dogs. The pair allegedly added a pet clause into their prenup that worked out who would get which dog in the event of a separation. Miranda was contracted to keep most of the dogs—as it was her lifelong passion to rescue and care for animals. Makes sense—prenups protect you and your interests.


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