Since the start of the pandemic, pet ownership has skyrocketed. The majority of people in the U.S. now own at least one pet, and virtually all pet owners consider their fur babies to be members of their family. As the birth rate declines in the U.S., pet ownership continues to rise. In fact, millennials are much more likely to own pets than children and factor in their pets when making big life decisions.
More than half of pet owners consider their pets just as much a part of their families as humans, so it makes sense to include your pets when making family planning decisions! As the landscape of pet ownership changes in the U.S., so do the laws governing pet disputes during divorce proceedings. We are going to break down what happens to pets in the event of a divorce and how you can have these discussions early on to minimize pet custody disputes later on.
What does the law say about pet disputes in a divorce?
We may consider them our fur babies, but the law doesn’t treat our pets the same as children. Historically, pets have been considered personal property in the eyes of the law, whose value then becomes part of the marital assets to be divided. And in most states, pets are still considered personal property under the law today. Understanding the deep emotional bonds between owners and their pets, many state legislators and courts have moved towards adopting an approach that considers the well-being of the animal when making their decision, such as in Illinois (750 ILCS 5/501(f); 5/503(n)).
So, how does the court decide who gets the pet?
If you and your spouse can’t agree on who owns the pet or what happens to the pet when you divorce, it will be a decision for the court to make. How your state decides who gets pet custody will depend on your state’s laws. A court may have certain considerations to analyze in making this decision. Some of these considerations may include:
- Initial ownership & adoption: Depending on when the pet was adopted, who paid the adoption fees, whose name is on the adoption papers, whether the pet was a gift, and the initial adoption circumstances, all will factor into the courts’ decision.
- Primary caregiver: The court will especially look to who is the primary party taking day-to-day responsibilities of caring for the pet, including feeding, walking, grooming, taking the pet to the veterinarian, and paying for pet medical bills and pet insurance.
- Living Environment: The post-divorce living environments will also play a role in determining who can reasonably provide a safe and stable environment for the pet.
- Financial abilities: Courts recognize the financial responsibilities of pet ownership, so they will look to each party’s abilities to financially support the long-term care of the pet.
- Emotional attachments: If one partner has a more emotional attachment to the dog, or if children are involved, the court will be inclined to grant ownership to whoever has custody of the child and/or who can show emotional attachments to the pet.
- Prenup, postnup, or other agreement: If you and your partner had a prior arrangement regarding ownership of your pet, the court would heavily rely on this agreement. So, putting a plan in writing can help guide the court to a fair and reasonable conclusion.
(See LaRiviere v. Shea, 307 A.3d 238 (Vt. 2023); L.B. v. C.C.B., 175 N.Y.S.3d 705 (N.Y. Sup. Ct. 2022); Hament v. Baker, 196 Vt. 339 (Vt.,2014)).
A shift in how the court views pet custody disputes is rapidly evolving. Below are some examples of progressive state laws in this space:
The state of Alaska was the first to enact a pet custody statute, which states that a court may take into consideration the well-being of the pet to determine sole or joint ownership upon a dispute during a divorce. Alaska Stat. § 25.24.160(a)(5).
In 2019, California also passed a law requiring that courts consider the welfare of the pet when determining sole or joint ownership of an animal during a divorce proceeding. Cal. Fam. Code § 2605.
In 2018, Illinois passed a law instructing courts to consider pets’ well-being when awarding sole or joint ownership during court proceedings. 750 ILCS 5/501(f); 5/503(n). So in Illinois, before a divorce is finalized, one or both parties can petition for sole or joint ownership of the pet, and the court will determine the welfare of the animal to make its decision.
In Massachusetts, there is no statute specifically governing how pet ownership should be assessed during a legal separation. However, a Massachusetts appeals court recently addressed a pet custody lawsuit, upholding a pet custody agreement that partners had made prior to separating. Lyman v. Lanser, 231 N.E.3d 358 (Mass. App. 2024). While this case was a dispute between unmarried partners, it signals a shift in how Massachusetts courts are starting to view pets as more than just property.
Under New Hampshire law, the court takes into consideration the pets’ well-being when determining pet ownership in a divorce settlement. N.H. Rev. Stat. Ann. § 458:16-a(II)
In 2021, the New York Legislature added a statute requiring the court to consider “the best interest of” the pet when awarding ownership during a divorce, recognizing that “for some families, pets are equivalent to children and must be granted more consideration by the courts.” N.Y. Dom. Rel. Law § 236(B)(5)(d)(15).
In a 2022 divorce case, a New York court awarded sole custody of the family dogs to the wife after considering the factors that would further the dogs’ best interests, including who took primary responsibility for their day-to-day care, who spent more time with the dogs consistently, the quality of the home environment, and the character and sincerity of the parties. L.B. v. C.C.B., 175 N.Y.S.3d 705 (N.Y. Sup. Ct. 2022. This case is a very thorough and detailed blueprint for how NY courts approach these disputes.
Under Vermont law, there is no statute that addresses pet custody specifically; however, there is case law that outlines the legal standard. In Hament v. Baker, 196 Vt. 339 (Vt.,2014), the Supreme Court of Vermont held that pets are considered property and thus subject to Vt. Stat. Ann. tit. 15, § 751 during divorce proceedings. Further, the court outlined two factors that were not in the statute but should be considered in pet custody cases: (1) the welfare of the animal and (2) the emotional connection between the animal and each spouse.
In a 2023 case, the court upheld a trial court’s finding that both parties were able to meet the dog’s needs and had strong bonds with their dog, but the wife’s emotional attachment to their dog was stronger than the husband’s. The court pointed to the husband’s decision to cut off contact between his wife and the dog prior to the divorce as a questionable move when considering the dog’s emotional connection with his wife. LaRiviere v. Shea, 307 A.3d 238 (Vt. 2023).
Takeaway: The best way to protect your pet in a divorce is to make an agreement regarding pet custody prior to getting married in a prenuptial agreement. This ensures you both are on the same page regarding who takes ownership of the dog or cat in a divorce, and (as long as the prenup is created validly and is enforceable), your wishes will be upheld by a court if you two cannot decide what happens to Fluffy in the divorce.
How a pet clause in a prenup can help
As you can see, the law is kind of all over the place when it comes to deciding pet custody disputes. Even in the states that have statutes or case law on the matter, there’s still no clear-cut answer except that a court will look at the “well-being” of the pet. To prevent your beloved pet from being the center of a lawsuit, you can create a plan ahead of time.
Adding a pet clause to your prenup will allow you and your spouse to think about your pets’ well-being with a clear head and work together to come to a reasonable agreement. Here are some specifics you may consider including in your prenup:
- Ownership/visitation: Will there be sole or joint ownership? Will you have a visitation schedule? If so, what does that look like?
- Financial obligations: If you are sharing custody, who is going to pay for the pet’s food, medical bills, and other expenses?
- Alternative dispute resolutions: You can agree to take any disputes to arbitration or mediation rather than a court.
The bottom line on pet prenup clauses
What is better than knowing little Fluffy’s future is safe and protected in your ownership, no matter what life throws at you? Including your pet in your prenup can help you and your partner make reasonable and informed decisions by having these conversations early on, focusing on the best interests of your pets in the event of a separation. The good news? HelloPrenup offers pet clauses that you may include in your prenuptial agreement! Start your prenup today with your custom pet clauses to boot!
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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