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Gaining pet custody during a divorce

This year, some states have enacted laws governing custody of a beloved family member: the couple's pet. Determining pet custody after divorce in California is still somewhat complicated.

Traditionally, pets were treated as property. Their well-being and interests were not considered by law enforcement and courts. Spouses, accordingly, must resolve this issue in civil courts and not part as their family court case. Having the pet is a property ownership issue and not a custody legal matter.

However, California family law provides protection to pets and takes their safety into consideration if there is reason to believe that one of the spouses may harm the pet. The state also passed legislation in 2007 that protects pets if there is evidence of domestic violence. This law allows the inclusion of protections for pets in domestic violence orders, while authorities may also remove animals if there is domestic violence.

The best means of resolving this matter is by executing prenuptial agreements, or a postnuptial agreement after marriage, that contains clear guidance on pet ownership, division of costs for pet expenses, such as veterinary care and boarding, and end-of-life decisions.

Absent these agreements, couples can include these pet issues in their divorce settlement. This can help avoid litigation in civil court and other stress and arguments. Family court judges in this state generally approve of most settlements entered by the spouses.

Other issues are also relevant, however. Couples should also seriously consider placement of the pet with the spouse who lives with the children if they are strongly attached to the animal. A spouse who had the pet before marriage may also be considered as its owner. This may remove custody or ownership as a divorce legal issue or even weaken a property claim in civil court.

An attorney can help a spouse negotiate this matter before, during or at the end of a marriage. They can provide advise on a spouse's rights to the pet and other matters during divorce.

Source: infoCalifornia Divorce, "Who keeps the pet?" Accessed Jan. 15, 2018

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