In divorce, the fate of the family pet is often a contentious, emotionally charged issue. But for years, as far as the law was concerned, sentimentality had nothing to do with it. Animals were property, plain and simple, to be divided between the spouses just like a car or a piece of furniture. Of course, dumping a beloved dog or cat into the same category as a couch borders on heresy for most animal lovers. And now, legislators in some states have come to realize that perhaps not all "property" should be treated equally.
No matter what state you live in, companion animals are still considered personal property. And that property is subject to distribution in a divorce.
Most states use the rule of "equitable distribution" to divide marital property in divorce. That means judges split the property between the spouses based on what they believe is fair under the particular circumstances in each case. In the remaining "community property" states, marital property is almost always divided 50-50, so that both spouses end up with assets that are equal in value.
In all states, assets that are considered one spouse's separate property—such as property a spouse owned before the marriage or inherited—won't be divided in divorce. Those same rules ordinarily apply to pets. So if one spouse owned Tabby the cat prior to the marriage, that's who Tabby stays with after the divorce.
Until recently, the closest you'd come to a mention of pets in the area of family law would be in domestic violence cases. More than half of the states allow domestic violence restraining orders to include provisions for the protection of pets. These provisions aren't necessarily based on a concern for the animals. Instead, they're aimed more at the unfortunate fact that abusers frequently threaten, hurt, or even kill pets as a way of intimidating family members.
Now, however, the laws in a few states acknowledge that—although pets are technically property—their value to a family can't be measured solely in dollars and cents. So they've elevated the status of companion animals to a different level—a middle ground somewhere between an inanimate object and a person.
California has a law that allows judges to provide for joint ownership of a pet in a divorce, rather than the old rule that required awarding the animal to only one spouse. A few other states—including Alaska, Illinois, and New York—have gone even further by requiring judges to consider the animal's well-being when they award ownership to one or both spouses in divorce. This is a remarkable leap, because it's close to the same standard judges use in deciding child custody cases. (Ak. Stat. § 25.24.160; Cal. Fam. Code § 2605; 750 Ill. Comp. Stat. 5/503; N.Y. Dom. Rel. § 236 (2022).)
In states with these laws, it appears that judges may—with the animal's well-being in mind—order spouses to share time with their companion animals, either equally or with one spouse primarily housing the pet and the other spouse having something akin to "visitation" rights.
Judges in divorce cases are given some leeway in determining what's in a family's best interest. So in states that haven't passed laws regarding the question of "who gets the dog in a divorce," the courts have occasionally jumped in to fill the void. Judges in those states may not be able to order custody of the pet or visitation rights under the law, but some have taken into account factors other than a pet's dollar value in determining which spouse should take possession of the animal. Some of those factors are:
If that last bullet point is a legitimate concern, it's likely a judge would award the pet to the spouse who has physical custody of the child.
A service animal—who is trained to perform specific tasks and assistance for someone with a disability—will almost always stay with the person who needs the animal's help.
That rule doesn't necessarily apply to emotional support animals. Still, if you believe that your pet is crucial to your mental health, you should get documentation from a qualified health care provider or therapist to support that belief. Of course, if you spouse does the same, the judge will have to weigh the evidence on both sides when deciding who gets the animal in divorce.
You and your spouse don't have to leave the future of the family pet up to a judge's decision. Instead, you may work out an agreement between yourselves. You can do this before you get married (in a prenuptial agreement) or when you're splitting up (in a divorce settlement agreement). So even if you live in a state without a specific law on companion animals in divorce, you may essentially do a legal end-run around your state's divorce law—in effect turning your prenup or settlement agreement into a "pet custody" agreement as well. These agreements are considered legally binding contracts, so both you and your ex must abide by their terms.
Illinois law actually requires that if divorcing spouses want to take advantage of the state's simplified procedure for uncontested divorce, they must have a written agreement on ownership and care of any companion animal the couple owns. (750 Ill. Comp. Stat. 5/452 (2022).)
If you've having trouble reaching an agreement about your pet (or any other issue in your divorce), mediation may help you work out your differences and find solutions.