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In a divorce or separation, deciding who gets custody of a dog or cat can become almost as contentious as battles over the custody of children. Many couples are now signing “pet nups,” which are an element of a pre-nuptial agreement that spells out who will get custody of any family pets in the event of a divorce. It’s also possible to establish a post-nuptial agreement for pets. If you’ve been married for years, for example, you can formally document how your pets will be cared for if the marriage ever dissolves.

In many states, pets are treated as personal property. The court must decide whether the pet is separate or marital property. If any spouse had the pet prior to the start of their relationship, ownership is less likely to be up for dispute.  If the pet is deemed to be marital property, things will be more difficult. Pets become marital property, like other assets acquired throughout the marriage, when marital funds are used for the pet’s upkeep. When making these determinations, judges consider who paid for the pets’ veterinary care, feeding, and grooming needs.

While one of the separating partners will typically take full ownership of the pet, it’s not unheard of for shared custody arrangements to be made or visitation rights to be granted to the partner who does not have custody.  Pet visitation will differ depending on the jurisdiction and available resources. Shared custody is never an ideal situation, for humans or pets, and it can be especially disruptive for cats, dogs, and other animals, who count on routine.

Some states, like Alaska, California, and Illinois, have moved beyond viewing pets as personal property. They have passed pet custody laws that allow courts to award custody on the basis of what is in the best interest of the pet. To make that assessment, courts will consider several factors, including who is the primary caregiver of the pet, which partner the pet seems most bonded with, and which partner can provide the safest and most comfortable home for it. Having an agreement already in place will make it less likely that a judge would reach a decision at odds with what the couple decided before they chose to separate.

It’s not pleasant to plan for the possibility of a divorce when a relationship is on good terms. Still, taking the time to consider and document who will care for your pet if that eventually does occur, can prevent stress for pets and humans alike down the road.

An attorney can help you determine how to incorporate consideration of your pets in a pre- or post-nuptial agreement. Anchin can also help ensure that you have the proper guidance and planning in place to handle all major transitions in your life, including marriages and divorces.  For more information or to discuss a specific matter, contact your Anchin Relationship Partner or ELIZABETH MORIN and Androula Constantinou, members of Anchin’s Matrimonial Advisory and Private Client Groups.