Who Takes Custody of the Pets in a Divorce?

Posted on February 20, 2017 in

Today is National Love Your Pet Day.  It is a time to reflect on the unique bond you have with your furry, feathered, hairy, scaled, or “other-ed” friends.  According to a survey from the American Pet Products Association, approximately 80 million U.S. households, or about two-thirds of all U.S. households, own some sort of pet (2015).  Many of these pet owners may be unaware of what could happen to those beloved pets if their household breaks up.

Traditionally, Georgia Courts treat pets like property. While pet owners might consider their cats and dogs to be their fur babies, under the law, animals are classified no differently than furniture, automobiles, or even plants when it comes to the division of property.  Even though these pets may have low market value, they do have significant emotional value, which is likely why there has been a steady rise in pet custody cases over the past several years (Source: The American Academy of Matrimonial Lawyers, 2014). However, the term “custody” is misleading, because under Georgia Law, it is really an ownership interest (and not custody) that the pet owners are fighting over.

For a couple who is entering a marriage and already owns pets, having a pet agreement in place beforehand can prevent potential arguments later.  A prenuptial agreement that addresses the current and/or future pets, or a postnuptial agreement addressing pets the couple has purchased or adopted after their marriage, can determine who will get the pets in the divorce. Some issues to consider when drafting this document are: whether you want full custody (“sole ownership”) or split custody (“joint ownership”) of the pets; and whether custody should reflect the pet’s favorite person or where the children will be residing.  If you share custody, the agreement should also address who will be responsible for training, feeding, grooming, exercise; and who pay for general items (ex: food, bedding, toys) and for medical expenses (ex: veterinary visits).

When it comes to divorce, judges have a lot of discretion in how to divide a couple’s property.  Georgia, in particular, is an equitable division state, meaning that the judges divide the marital property based on what is fair, and not necessarily what is equal between the two parties.  The end result is that the parties no longer hold any martial property together (or will cease holding it together after a certain time frame – for example, if their shared house needs to be sold after their divorce).

For couples who are divorcing and do not have a pet agreement, pet custody may be negotiated during mediation or determined by the judge presiding over the divorce case. In mediation, the pet owners may come to an agreement about shared custody and visitation as well as who is responsible for the pet’s care and upkeep. (The judge will typically approve and sign these agreements). If the issue is not resolved in mediation, it then goes before the judge, who is only able to award pet ownership to one person.  There is no shared custody or visitation; the other party will have no right to the pet.  In households with multiple pets, this often means the pets are split from each other. This result may seem unfair to both the pet owners and the pets, which is why it is so important to be proactive about addressing ownership.  Pet owners also need to be strategic in approaching their divorce case so that the other party does not leverage custody of the pet to reach an otherwise unfair settlement agreement.

Determining pet custody can be an emotionally draining experience, but there are steps you can take to mitigate the stress. For more information on prenuptial and postnuptial agreements and custody (ownership) negotiations, you can schedule a consult with Porchlight by calling (678) 435- 9069 or contacting us here.