The millennial generation–also the biggest generation in history–is less likely to have kids than generations past. Birth rates had already hit a record low before the pandemic, and post-pandemic they continue to decline (Collins, 2021). In fact, 44% of childless people between 18-49 years old reported that they probably won’t have kids (Collins, 2021). However, although many millennial couples live without children, their homes are far from empty as they often live with pets. They also tend to add pets to their families younger than previous generations (Taylor, 2015). By now millennials represent the largest share of pet ownership across the country (Consumer Goods and FMCG, 2022), and overall household pet ownership rates have risen sharply from 56% in 1988 to 70% in 2020 (Consumer Goods and FMCG, 2022). For some couples, pets are replacing children.
With pets so central to the lives of so many couples, questions of pet custody in the case of divorce have become especially salient. However, most couples neglect to write post-divorce pet arrangements into their prenups. This can end with one partner feeling doubly devastated if they divorce and lose both their partner and their furry best friend at the same time. If you or your fiance is entering the marriage with a pet, if you have a pet together, or if you may in the future, it is of utmost importance that you talk through what will happen to the pet(s) in the event of divorce.
Without a prenup, the courts will default to the laws of the state (variable state by state), not to what’s necessarily best for the whole family. Most state laws do not treat pets with the same nuanced level of consideration they would afford to children when a couple is divorcing. For example, in Washington there are no ‘custody’ laws for pets (Irvin, 2021), which means that pets are viewed as property and given to one party without adding any additional provisions like visitation arrangements or shared custody as they would with a child. However, this varies state by state. Illinois is moving in the direction of treating pets similarly to children when deciding their future post-divorce (Rentz, 2022). For now, though, Illinois is the exception, not the norm. Furthermore, even if your state does treat the future of a pet with as much consideration as they would a child, this still does not mean the outcome will be what you want or what’s best for the pet. As such, it’s important to include provisions for pets in a prenuptial agreement.
Questions to consider when writing a pet custody agreement
Aside from simply ownership, there are plenty of other variables to consider as well. A carefully-planned prenup which includes a detailed pet custody agreement ensures that the two of you can decide what would be best for your unique situation rather than leaving the future of your fur baby up to a judge who has probably never met them or seen that absurdly cute face they make when they’re guiltily trying to steal your food.
As you draft the pet portion of your prenuptial agreement, you should discuss each of these questions in-depth. Make sure to leave yourself plenty of time to weigh your options, account for different variables, and consider what would be best for your pet. Remember, a pet custody agreement shouldn’t be exclusively about your individual interests. It’s not about one person or the other ‘winning’ in the event of divorce–it’s primarily about what is in your pet’s best interest.
Questions to Consider
- Who pays vet bills? (Rentz, 2022)
Where will veterinary care take place? (Rentz, 2022)
- Who should be the primary decision maker when it comes to health? (Rentz, 2022)
Who will be the pet’s primary caretaker?
Who pays pet insurance (if applicable) after divorce? (Hello Prenup, 2021)
- What will be the details surrounding visitation rights?
- Will the secondary caretaker ever be allowed to take the pet for an extended period of time (such as during a holiday or weekend)?
Should the primary caretaker be present during visitation?
- What will happen if the primary caretaker decides to move to another city or state? (Rentz, 2022)
- Will the rules for visitation change if the secondary caretaker moves to another city or state?
Pets and Prenups: Beyond Custody
Pet care in the event of divorce is not the only thing to consider when you write a pet(s) into a prenup. Pets are much more expensive than most people think, and caring for them properly during a marriage involves careful financial planning. Most people estimate that their pet will only cost them around $2,000 throughout their lifespan, but in reality some pet owners spend up to $42,000 on a dog or $31,000 on a cat (Guzman, 2017). That means that if pets are or will be a part of your family, you need to carefully consider how you’re going to pay for them.
Pet care costs are uncertain and can vary widely based on the health and medical needs of your pet, the quality of their food, and how much you’d like to spoil them with treats and outfits. As a result, many couples nowadays are investing in pet health insurance so that they can plan their pet expenditures with a little more certainty, especially with regards to the possibility of pets requiring prohibitively expensive medical treatment. In fact, pet insurance is becoming so common that now even Geico offers it (a fifteen minute call could save Fido’s life!)
A prenuptial agreement is largely about making financial plans and arrangements; aside from hypothetical divorce scenarios, these plans also govern how finances are dealt with during your marriage. Pet insurance can be a significant expenditure, so provisions for how it will be paid for should be written into your prenup.When drafting your prenuptial agreement, you should also ask yourselves which account will cover pet expenses. From where (or whom) will you allocate funds for insurance, dog toys, cat litter, vet bills, food, leashes, and cute sweaters the fur baby would be embarrassed to be seen wearing in public? Will you draw from a joint account? If you have multiple accounts, which one(s) will be used for pet care? Will you share financial responsibility by each covering different expenditures? If only one of you will be responsible for the financial burden of pet ownership, whose responsibility will that be? Since you want to give your pet(s) the best life possible, their care requires careful planning in order to be able to provide for them.
Things the courts may consider when deciding ownership
If you don’t have a pet custody agreement and you one day decide to end your marriage, the judge may take the following into account when deciding on the future of your pet(s):
Who owned the pet before marriage (Rentz, 2022): This is a major determiner of post-marriage ownership.
Who purchased the pet (Rentz, 2022): Some judges will decide based on this alone.
Who cared for the pet’s needs during marriage (Rentz, 2022): If one of you was the primary caretaker in terms of taking the dog for walks, cuddling and feeding the cat, or always being the one to notice when the fur baby wasn’t feeling well, this might work in your favor in a courtroom.
Who trained the pet (Rentz, 2022): Because training involves a major time and energy investment, it could be taken into account.
Who can provide a better environment for the pet post-divorce (Rentz, 2022): Some states haven’t factored the pet’s interests into their laws, but thankfully some might consider this extremely important factor–and you should, too.
How much money is needed to care for the pet: If one spouse is less financially able to pay for vet bills, treats, and good-quality food, this might be an issue.
Whether the pet was a gift (Irvin, 2021): If the pet was a gift to one spouse (including from the other spouse), this could make a difference.
Which parent has custody of the children: Many judges tend to rule that the pet goes where the children go (Taylor, 2015). Divorce takes a toll on children, and having some stability at least in terms of their animal friend’s continued presence can help them cope…not to mention that staying with the kids may be beneficial for the pet, as well.
Multiple Pets: If you have more than one pet, there may be different arrangements for each one based on the criteria listed above.
Although you may love and care for your pet as though they were your child, remember that the courts may not feel the same way. Courtroom consideration of possibilities like shared custody and visitation rights are not a given for pets the way they are with children. Again, this is a good reason to explicitly write these things into your prenup. Writing these clauses into your prenup doesn’t necessarily make them 100% legally enforceable in all cases, but it does mean that you and your spouse have made a verbal, explicit agreement that you’ll be more likely to take seriously and uphold yourselves versus if you hadn’t discussed pet agreements in such detail or hadn’t written them into your prenup.
How to increase your chances of winning pet ownership in a divorce
Ugh, it feels terrible to even write that…but the unfortunate reality is that many couples find themselves in this position. Ideally, you’d write a pet custody agreement into your prenup. However, if you aren’t able to do that, this section is for you.
There are a few factors to which the courts will give more weight than others. If you can produce the following documents, the odds may be in your favor:
License and registration: This document shows the ‘official’ owner. This person is liable if the pet harms anyone or if anything bad happens to the pet. Oftentimes, the judge will make a decision based on this document (Rentz, 2022).
Pedigree registration: If your dog is a purebred, your name might be on this document, and that might help you (Rentz, 2022).
Vet records: These might list both of your names. If that’s the case, the judge will know that you both took an interest in caring for the pet, and they may make a decision based in part on who spent more money on vet bills (Rentz, 2022). So if you wince every time you pay for Fido’s expensive flatulence medication, don’t worry–this could help you someday.
Microchip paperwork: Since getting a pet microchipped requires a signature, it may be used as proof of pet ownership (Rentz, 2022).
Don’t want to think about this? Then get a prenup, and include a pet custody agreement. If you ran out of time and you’re already married, not to worry–you can get a prenup after marriage, otherwise known as a postnup.
In order to avoid having to think about stuff like this, make your petnup (and prenup) a high priority item on your wedding checklist.
Just like human family members and children, pets can suffer a lot of stress as a result of divorce. That’s why it’s crucial to have a plan in place to look out for not only yourselves, but your pets.
Collins, L. M. 2021. More Childless US Adults Say They’ll Likely Never Have Kids, Survey Finds. Retrieved from: https://www.deseret.com/2021/11/28/22798914/more-childless-adults-say-theyll-likely-never-have-kids-survey-finds-pew-research-center-birth-rate
Consumer Goods and FMCG. 2022. Share of Pet Ownership in the United States in 2021/22, by Generation. Retrieved from: https://www.statista.com/statistics/1130651/pet-ownership-by-generation-us/#:~:text=During%20a%20survey%20conducted%20in,24%20percent%20of%20pet%20owners.
Hello Prenup. 2021. What About Fido? Retrieved from: https://helloprenup.com/prenuptial-agreements/prenups-and-pets/
McKinley Irvin Family Law. 2021. Pet Custody in Washington. Retrieved from: https://www.mckinleyirvin.com/family-law-blog/2021/october/pet-custody-in-washington/
Taylor, C. 2015. In Divorce and Custody Battles, Now it’s About the Dog. Retrieved from: https://www.reuters.com/article/us-money-pets-custody-idUSKCN0QH1S620150812
The Law Offices of Sheryl R. Rentz. 2022. How is Pet Custody Decided in a Divorce? Retrieved from: https://www.srrentzlaw.com/blog/divorce/how-is-pet-custody-decided-in-a-divorce/
The Law Offices of Sheryl R. Rentz. 2022. Pets: Divided Like Property, or Shared With Custody? Retrieved from: https://www.srrentzlaw.com/blog/property-division/pets-divided-or-shared/
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].