Who Gets To Keep The Family Pet In Divorce?
In divorce, who gets to keep the family pet is a question we as Rockland County divorce attorneys are frequently asked. There is no question that for a number of American families, the family pet is a member of the family.
In the eyes of the law, pets are still considered to be personal property – even if this does not make a whole lot of sense, given their sentience. Still, this means that pets are handled in a similar manner to other shared assets. However, obviously this is not an asset that can be sold and/or physically split, therefore, the pet’s history is directly relevant here: How was the pet acquired, and with whose funds?
Marital Assets Versus Separate Property
While marital assets are loosely defined as those which are acquired and/or accumulated by the couple during the marriage, New York law defines separate assets as those acquired by one of the individuals prior to marriage. While marital assets are typically distributed equitably, separate property is kept by the one spouse it belongs to. Therefore, if a pet was acquired by one individual prior to the marriage, gifted or inherited to one individual during the marriage, or even purchased using premarital assets, it would be the individual property of that one spouse (and documentation would need to be produced in order to support this property interest).
Options When Pet Is Co-Owned
However, if a pet was acquired during the marriage with marital assets, the pet would be considered marital property subject to equitable division. Practically speaking, this would likely result in one spouse keeping the pet, while the other spouse would receive compensation in exchange for their interest.
However, if the parties are unable to agree on who will retain the pet after the divorce, the courts will have to make that determination, and it can rely on a number of factors in determining this. Under a relatively new law in New York, the Court must now consider the best interests of the animal and whether there has been any history of domestic violence in the relationship (and if so, the nature, duration, and impact of the violence). The court can also consider any other factors that it deems just and proper, such as, for example:
- Which party has been primarily responsible for the pet’s care during the marriage
- Whether one party technically holds legal title to the pet
- Whether one party’s residence is more appropriate for the pet and whether the pet has been residing there during the marriage
- Whether one party has been more financially responsible for the pet’s expenses
- The relationship between the parties and the pet
- If minor children are involved, and the pet is close with those children, with whom those children will primarily be residing/and where
- The health of each spouse
- The relative work schedules of each spouse
- Any special needs the pet might have that one spouse may be better suited to provide
- (if the pet will be subject to a shared set up) the ability of the parties to share time with the pet
A couple can also agree to share time with the pet; and while the courts do not typically help come up with custody or visitation agreements for pets, if the couple comes to their own agreement, this can be incorporated into a final order.
Contact Our Rockland County, New York Divorce Attorneys for Assistance
The Law Office of Robert S. Sunshine, P.C. maintains a robust family law practice and assists clients in all related areas in Downstate New York and the Lower Hudson Valley. We are experienced litigators, and can help you in all aspects when it comes to divorces here in New York. Contact us today to find out more.