The statistics are still telling us that about 50 percent of all marriages in the United States will eventually end in divorce. The statistics also tell us that approximately 62 percent of the households in the United States include at least one pet. Thus, many if not most divorcing spouses are also pet owners. When a married couple chooses to divorce, what happens to their fur-covered companions?

A dispute over the “custody” of a beloved companion can be a formidable obstacle to pet-owning couples who seek to divorce, whether in California or in any other state. The best way to protect a pet in a divorce is to have a prenuptial or postnuptial agreement that precisely spells out who keeps ownership of the pet and how costs may be handled or shared for veterinary care, boarding, and related expenses. Having the future of your family’s pets decided legally, in writing, and in advance is the surest way to avoid a pet dispute should a marriage end in divorce.


It has always been common law in the United States that animals are deemed to be private property, so when there’s a divorce involving a pet or pets, the legal question has historically been a question of “ownership” rather than a question of “custody.” One law professor, David Favre at the Michigan State University College of Law, has proposed legal recognition of a pet’s status as a living being – a concept he calls “living property” which recognizes that pets, unlike objects, “have an inherent self-interest in their continued well-being and existence.” However, no state – so far – has put this concept into law.


However, in recent years, there has also been a perceptibly growing trend among family law judges in a number of states to at least consider factors apart from “mere” legal ownership. In the state of California, for example, the best interests of a child will always be a family court’s highest priority, so if a child has become devoted to a pet, the child’s emotional attachment will be considered.

California has also approved and now and enforces laws that specifically protect domestic animals if there is a reason to believe that a domestic abuser may harm an animal – California Family Code Section 6320, for example. Pets may be included in the protection provided by domestic violence restraining orders, and law enforcement officers may remove pets from domestic violence situations.

The American Academy of Matrimonial Lawyers reported in 2014 that 27 percent of the family law attorneys they surveyed confirmed that the number of pet-related divorce disputes is on the rise. Most of those disputes involve a dog. In most cases, if someone legally owns a companion prior to getting married, that person will probably keep the pet in a divorce. However, every case is different, so pet owners who are divorcing in southern California will need an experienced Orange County family law attorney with experience handling a variety of divorce-related legal disputes.


Here are several of the questions that a judge might ask in a pet dispute:

Q: Who cares for the pet?

A judge may ask who buys the pet food, who feeds and bathes the animal, and who takes it to the veterinarian. If you are the spouse who does that, gather the evidence to prove it. Get a statement from your veterinarian verifying that you are the person who brings the pet in for treatments and check-ups. If the pet is a dog, ask a neighbor to confirm that you are the one who walks the dog. Save pet food receipts with your signature. If you are the pet’s primary or exclusive caretaker, be sure that you can prove it if you need to.

Q: What about the children?

A: If the divorcing spouses are parents, and if a pet is truly a family pet, then it may be in everyone’s best interests for the animal to live with the child or children. If the custody of the child or children is shared, there is usually no reason why the custody of the pet or pets cannot also be shared.


Q: Whose lifestyle best accommodates the obligations of pet ownership?

A: If one divorcing partner works long hours or travels often, and the other partner works from home or has a daily routine schedule, obviously the spouse with the more predictable lifestyle is better suited to providing a good home for a pet. Most pets need consistency and plenty of positive interaction with their humans, so the spouse who can routinely provide consistency and interaction is in the better position to be awarded “custody” of a pet by a California judge.


Of course, if a divorcing couple has previously signed a prenuptial or postnuptial agreement that is legally valid in California, a family law judge will enforce that agreement. And even without a formal prenuptial or postnuptial document, if divorcing spouses can nevertheless reach their own agreement regarding the family’s pet or pets, a California family law judge will almost always sign off on that agreement.

Divorcing partners will typically have plenty of disagreements – in fact, that’s why they divorce. But in the state of California, whenever divorcing spouses can reach agreements regarding matters like the distribution and division of marital assets, spousal support, child custody, and the ownership of the pet or pets, they can save time and money and avoid a great deal of aggravation.

When domestic violence is a factor in a marriage or in a divorce, abusers often try to intimidate victims by threatening harm to the pet or pets. The ASPCA says that more than 70 percent of the pet owners they surveyed in domestic violence shelters report that a pet was threatened, harmed, or killed by an abusive spouse or partner. In California, a conviction for injuring or killing a pet is punishable in some cases by three years in prison.


Divorce is always unpleasant, but no one should have to worry about a beloved pet’s safety or future. If you are a pet owner who is divorcing in Southern California, you’ll probably need an experienced Orange County family law attorney who thoroughly understands your love for your pet. After all, spouses may divorce, but a good pet’s love is forever.

By: Bayati Brian

Brian A. Bayati has been named three times as a top Orange County divorce attorney by OC Metro Magazine. He graduated from the University of California, Hastings College of the Law, where he was a judicial extern to the U.S. Court of Appeals (9th Circuit) and a public service mediator. Prior to founding Bayati Law Group, he was part of a civil litigation firm with offices across the nation. Bayati Law Group focuses exclusively on the practice of family law.