Pet Custody Battles: How to Keep Fido in Your Home

 Posted on June 01, 2015 in Family Law

Divorce can affect an entire household and the family and friends who surround it. When a divorce is first announced and the process is started, the first things that come to the surface are the most obvious: What to do with the assets, the house, and the children? Though these are all major concerns, there are other concerns that are just as important but sometimes are forgotten in the minutiae. These days, attorneys are seeing an increase in pet custody cases within the last 5 years. According to a study done by the American Academy of Matrimonial Lawyers (AAML), 88 percent of pet disputes are over the family dog; only five percent of pet disputes are over the family cat.

Pets as Property In the Eyes of the Law

Pet custody battles can cause considerable controversy within the divorce because the emotional attachment that people have with the beloved family dog or cat. The family pet, though many would disagree, is not treated equally as the children are when it comes to the law. For example, pets are not considered as members of the household. They are more akin to furniture or other tangible, personal property in the eyes of the law. Because of this, the status of the pet as either marital property or individual property is a crucial consideration.

Marital Property or Individual Property?

The pet would be found as marital property if the pet was acquired after the marriage began. The pet would be found to be individual property if the pet was acquired before the marriage. Custody is easiest if the pet is found to be individual property rather than marital property because then the line drawn is clear.

Is the Pet in the Prenuptial/Postnuptial Agreement?

If the pet was acquired after the marriage and is marital property, there are several factors that the court might take into consideration when deciding to place the dog in one partner’s home or the other. First, if the pet was thought of before the marriage in a prenuptial agreement, then the property would stay with the person indicated in the marital contract. This rule applies if the pet was later added into a postnuptial agreement.

Considerations for Pet Custody: Who is Caretaker?

If there is no legal support to indicate the ownership of the pet, then other considerations are evaluated and weighed. One of the considerations to be evaluated is who takes care of the pet. If there is contention as to who should get the pet, compiling evidence regarding its caretaking could help sway a judge. For example, the judge may take into consideration if you regularly walk the pet, buy the supplies needed to take care of the pet, bring the pet into the veterinarian for check-ups or if it’s ill, etc. It might help to get signed statements from neighbors (stating that they have seen you, and not your spouse, walking the pets everyday) and from the veterinarian (stating that they have witnessed you, and not your spouse, bringing in the pet for check ups). Also save receipts with your signature showing that you go to the pet stores to purchase pet products.

Whose Lifestyle Is Better Suited to Pet Ownership?

Other considerations that might sway the court include the lifestyle that your separation will become and if its better-suited than your ex-spouse’s life. For example, if you work from home and therefore have the time and money to support the pet then you could make the case that your lifestyle is better-suited to pet ownership. Also, on the other side of the coin, if you can prove that your ex-spouse’s lifestyle is a terrible fit to pet ownership, such as long work hours, constant travel, disinterest in the pet generally, etc. then that might help make your argument stick.

Where is the Custody Situation For the Children?

One final consideration is where the children's main residence will be. If the pet is a family pet, then it might make sense to keep the pet and the children together because of the emotional connection made between them. Studies show that pets make great support animals and the kids, when going through this divorce period, might want to have the pet around for consistency and emotional support.

Experienced Family Law Attorneys in DuPage County

Pet custody is one of the many issues that may come up when initiating divorce proceedings. The experienced family law attorneys at Mevorah & Giglio Law Offices can provide excellent legal advice and help keep your beloved pet within your home. Contact our experienced DuPage County family law attorneys today for a free and confidential consultation.