Written by attorney Erin Ann Levine

Divorce and Pets -- Who gets Fido?

In California, pets acquired during marriage are presumed to be community property.What does that mean? In a divorce or domestic partnership dissolution, the family court assign the pets similar to the way they divide property such as furniture or vehicles.

In other words, one spouse gets the pet, and the other does not.

I have not had any cases where the court ordered a shared custody arrangement of the pet when the parties are in dispute. Rather, the court generally adopts the best interest standard for pets; where will your furry friend be most comfortable? Who was the primary caretaker of the pet during the relationship? Who has moved into a residence that allows animals? Will the pet be mistreated if s/he is in the control of one party? This is a subjective test and therefore litigation is frightening because it is difficult to determine who will win. Unlike children, where a custody order can be modified from time to time, when a pet is assigned to one party, the other party generally loses forever.

Despite the general rule of pets being considered as property, they have gained some important legal rights. The victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals. They can also obtain an order that the domestic violence perpetrator must stay away from the animal(s) and/or refrain from taking, selling, concealing, attacking etc. the family pet.

How can you avoid a pet property dispute?

Consider a prenup which will dictate who gets the family pet in a divorce or domestic partnership dissolution.

Negotiate a shared "custodial" arrangement with your ex before the divorce is finalized.

Many people would rather share a pet than take the risk that the Court will award their little buddy to the other partner. Just because there are no family laws that require the court to order a shared custodial relationship -- doesn't mean you can't agree to be creative with pet custody. Some of my clients have agreed to an alternating week situation with each 'parent' having the pet 50% of the time. They've also agreed to terms whereby they will be given a 'right of first refusal' for pet care. In other words, if one spouse is going out of town, s/he will offer the pet to the other spouse first, before choosing a pet sitter or boarding. Another idea is to negotiate how medical bills will be shared and whether or not one pet parent will need to notify the other prior to obtaining medical treatment and/or a new vet.

Consider giving up a cash asset or taking on more than your fair share of debt in exchange for keeping your dog.

If it is of highest importance to you to ensure that the pet stays with you (and/or the children if you have primary custody), it might be worth giving up something that entices your ex to give up the pet. Ask yourself the question, in 5 years will this matter? I assume keeping the pet WILL matter but perhaps taking on an extra credit card will not.

In any case, pets often have a significant bond with their owners -- the thought of losing a pet in a divorce can sometimes feel extremely emotional and stressful. Ensure that you consult a legal professional if this is an issue that you are concerned about.

Should you wish to discuss your pet situation in detail, feel free to schedule a free 30 minute consultation with a lawyer at Levine Law Group. (510) 595-4112

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