This is actually a question that I get quite frequently from my clients. Dogs are often seen as a family member and when thinking about having to “share” this precious companion, clients often get very emotional. The answer often surprises people: pets are considered property and thus are treated no differently than any other personal property that is divided up during the divorce proceedings. Specifically, in awarding the pet to either spouse, the court will look to factors such as, whether the pet was acquired before the marriage, whether the pet was a gift to one spouse, the living conditions that each spouse will have after the divorce, the time constraints that either spouse may have in caring for the pet, where the children will most often reside, and even the “value” of the pet in equitable distribution.
Unlike, determining custody of children, there is generally no “best interest of the pet” standard for courts to apply. However, this does not mean that courts are insensitive to the importance of this decision and the overall emotional impact that this decision has on the parties. Most often, the parties themselves make this decision, with out the direction of the court. However, if the parties simply cannot agree, the court is asked to make a determination, which can result in emotional consequences for the party not awarded custody.
If you find yourself in this situation, it is best that you and your spouse make a “custody” agreement that works for you, ideally, with out the direction of the court. You and your spouse know what is best for your family and for your children, if there are children involved. Parties often keep the pet with the children so that the pet accompanies the children during each spouse’s parenting time. Bottom line, determining the custody of the family dog, or other pet, can be an emotional decision that involves feelings of loss, on top of the loss of the marriage. It is important that each party be reasonable in their decision to determine what is best for the family as a whole.