Divorce: Custody of Pets

When couples with pets get divorced, what happens to the pets? The New York Times recently featured an article on this.

In California, pets are generally treated as personal property during a divorce. As such, the usual property rules apply. If a spouse was the owner of the pet before the marriage, the court will presume that pet is that spouse’s separate property. If the spouses became owners of the pet during the marriage, then the pet would be presumed community property. Custody of pets is not treated the same way as children, where custody is awarded based on the best interests of the child.

However, there are special rules about protecting pets. Under Family Code section 6320, a spouse can ask the court for a restraining order against the other spouse that orders him or her to stay away from the pet if that spouse poses a harm to the animal.

Couples looking to marry might consider addressing pets in their premarital agreement if they have a particular attachment to their animals. Many times this attachment is seen in couples with little or no children and could be a potential source of emotional contention. With an agreement in place, couples could reduce the need for long and expensive legal battles over pet custody in the event of a divorce.