Pet Custody: Who Gets the Dog in Divorce and How Does Divorce Affect Your Dog?

Your marriage is over. You know it. You’re dealing with it. But the thought of losing your dog or cat along with your spouse is tearing your heart out. You’re willing to fight for your furry friend. The problem is: so is your spouse! You’ll share if you have to. But, is pet custody even a thing?

Pet Custody and the Law

According to a study conducted by the American Veterinary Association, 85% of dog owners and 76% of cat owners think of their pets as a part of the family. Unfortunately, the law in most states doesn’t view animals that way.

As cold as it seems to anyone who’s ever loved a four-legged fur baby, most states still consider pets to be property. Period.

That means that no matter how much you love your pets, once you divorce, either you become your pet’s sole owner, or your spouse does. There is no “pet custody.” There is no legal requirement to share time with your pet with your ex after you’re divorced.

What’s more, it doesn’t matter who would be the better “pet parent,” or what might ultimately be best for your pet.  In the states that treat pets as property, no one really cares what’s in your pet’s “best interest.”

Who gets to keep your pet in a divorce is generally determined by one of three things:

• What you and your spouse agree on; or
• Who the pet’s legal owner is; or
• What a judge decides (… which is generally based on legal ownership).

Like it or not, in the eyes of the law, your pet has no greater legal status than your lawn mower.

The New Pet Custody Laws

Even though the law has traditionally held that pets are property, some judges are starting to disagree. According to the Animal Legal Defense Fund:

Although animals are considered property in the eyes of the law at this time, some courts are beginning to recognize that one’s relationship with this particular form of property known as the family cat, dog, bird etc., is much different from one’s relationship with other forms of property such as your couch, your watch or your coffee pot.

Maybe because of this kind of sentiment, the legislatures in some states have finally started to change divorce law when it comes to pets.

In 2017, Alaska became the first state in the country to require courts to take a pet’s well being into consideration when deciding who gets the family pet in divorce. The Alaska statute explicitly empowered judges with the authority to award joint custody of pets to a divorcing couple.

Illinois followed suit in 2018.

From January 1, 2018, forward, Illinois judges have been allowed to award either joint or sole possession of (and responsibility for) jointly owned family pets (referred to as “companion animals”) to one spouse or the other in divorce. Illinois law also now requires courts to take into consideration the pet’s well-being when deciding what happens to that pet after divorce.

Since 2018 a handful of other states, including New York, New Hampshire, and California, have passed laws governing pets in divorce. Other states, specifically Florida, Vermont, and Texas, have applied similar concepts through case law, even though they don’t have specific statutes governing pet custody.

What’s Best for Your Pet in Divorce?

While experts disagree about whether pets experience emotions or not, some scientists and most pet owners would argue that they do. Pets have been known to show signs of depression and anxiety, particularly when their routine changes or they lose an owner.

What’s more, in addition to experiencing their own emotions, pets often pick up on the emotions of their owners. When their owners are sad, mad, or depressed, their pets often mimick their owners’ behavior. That also makes them more apt to suffer when their owners are going through a divorce.

Dogs, in particular, need consistency and stability. When they don’t get that, they often start exhibiting behavior problems or acting out.

Some of the symptoms of separation anxiety in a dog are:

• Increased whining, whimpering or barking;
• Excessive grooming;
• Excessive lip licking or drooling;
• Engaging in destructive behaviors;
• Potty accidents;
• Panting;
• Yawning;
• Pacing;
• Showing their bellies;
• Showing the whites of their eyes;
• Shaking and trembling.

The challenge with pets is that, while all of these things can be signs of anxiety, they can also be signs of a physical illness as well. That makes it difficult to pinpoint what’s going on with your pet during a stressful life transition.

[NOTE: A trip to your vet to have your pet checked out is always wise if s/he is exhibiting any kind of abnormal behavior.]

What To Do If You Want Your Dog in Divorce? 

If you live in a state that has a specific statute outlining what happens to pets in a divorce, getting a judge to grant you custody of your cat or dog in your divorce should now be much easier. The same thing “should” be true of sharing time with your pet.

However, even in states where the law now requires judges to award possession of a dog to one spouse or the other, some judges still may be reluctant to engage in full-blown hearings over “doggie visitation.” The reason is simple: Scarce resources.

Most courts these days are woefully backed up. The idea that a judge would spend precious court time entertaining arguments about “doggie visitation” doesn’t sit well with many judges.

That’s even more true when it comes to “post-decree” litigation. (i.e. litigation between people who are already divorced.) Adding pet issues into the list of things that post-divorce litigants can fight about could potentially explode the courts’ already overburdened dockets.

Getting a judge to decide who should get the family pet, or when each party can see a pet after divorce can be even harder in states that still classifies pets as “property,”

Of course, if you and your spouse can agree to share time and responsibility for your pet, the judge is likely to allow you to make whatever agreement you want. If you and your spouse can’t agree, however, that’s when you’re going to have to prove your pet custody case.

8 Tips for Proving YOU Should Get Your Pet in Divorce

Fighting to become the sole owner of your pet will require you to persuade the judge that s/he should award the pet to you. To do that, you’re going to have to prove either that the pet belongs to you, or that your pet will be better off with you.

Here are 8 kinds of evidence you can use to make your case:

1. Ownership or adoption papers that show that you are your pet’s registered owner;
2. Vet receipts or other documentation showing that you were the one who took your pet to the vet all, or most of, the time;
3. Pet store receipts that show you were the one who bought your pet’s food, toys, etc.
4. Any evidence you can find that you were the one who took your pet to training classes, puppy play time, etc.
5. Pictures of you and your pet together (especially pictures taken at various times BEFORE anyone filed for divorce);
6. Evidence that you will be able to provide a home for your pet after your divorce (i.e. does your lease allow pets?);
7. Evidence your home is big enough for your pet, especially if it’s big. (Housing a 200 lb. English mastiff in a 500 foot studio apartment would clearly be problematic.); and
8. Evidence that your work schedule provides you with enough time to care for your pet. (This isn’t as big a deal if you own a cat. If you own a dog, it can be huge!).

What’s Really Best For your Pet in Your Divorce?

Beyond simply proving that YOU would make the better “pet parent” after your divorce, if you truly love your pet, you would be wise to try to objectively consider whether living with you after your divorce would truly be in your pet’s best interest.

Do you have time to spend with your pet or do you travel a lot? Do you have space for your pet, or will you be living in a cramped apartment for a while? Can you afford to keep your pet, and pay for food, vet bills, doggie day-care, etc.?

Remember that if you get “custody” of your pet, you’re also going to end up being responsible for your pet – both financially and otherwise. So before you fight to get “custody” of your pet, take some time to think about what your pet’s quality of life will be with you, and with your soon-to-be-ex.

You should make the same analysis when considering whether you and your spouse should share time with your pet after divorce. You know your pet. Will going back and forth between houses truly be best for your pet?

If your pet is old, sick, or anxious, then schlepping him/her from one house to the other every week is probably not a good idea.

Finally, besides just thinking about you and your ex, you also need to think about your kids. If the family pet really belongs to your children, would letting that pet stay with your children be best? That way your pet, and your kids, would always be together. Would that be best for your pet? Would that be best for your children?

The Bottom Line When It Comes to Pet Custody

Divorce is hard on everyone, including the family pet. If your spouse wants to start The War of the Roses over your cat or dog, your divorce is going to be that much harder. That’s especially true if you live in a state that views pets as property or doesn’t support the idea of pet custody.

While that law is changing, unless you live in the small handful of states that are “pet-friendly,” you may find yourself fighting an uphill battle. In the end, only you can decide if that kind of fight will be best for you, your kids, and your pet.

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This post was originally published in January, 2018 and updated in September 20, 2023.