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Talk show co-host Mark Consuelos made news recently when he said he would stay in a loveless marriage if it meant he could see his dog every day. It was an effective way to show how deeply he loves his dog. Societal trends confirm he is not alone. Pew Research Center reports approximately 62% of Americans own a pet and a remarkable 97% view their pet as a member of their family (about 50% of those respondents view the pet as equal to human members of their family). Pets clearly play an important role in our lives. Then what happens when a marriage or relationship ends and a pet is caught in the middle? Let’s review how pets can be treated in a divorce, highlighting high-profile divorces and ways in which you can mitigate potential risks.
We Love Our Pets, But They Are Legally Property
Pets traditionally have been treated as property in divorces. Generally speaking, property that a spouse brings to the marriage is considered non-marital property and remains with the respective spouse in the event of divorce. But property that is acquired with joint assets during the marriage is likely considered marital (or community) property, and thus subject to division in the event of a divorce. For example, in a Texas divorce proceeding, the court will divide property in a “manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”1 One Texas court explained that “A dog, for all its admirable and unique qualities, is not a human being and is not treated in the law as such. A dog is personal property, ownership of which is recognized under the law.”2 The court in this case awarded custody of the family dog to the wife based on testimony that she received the dog ten years prior to the divorce.
The Shift Towards a Pet’s Best Interests
When we view pets as simple property, similar to furniture or silverware, we cannot take the animal’s best interests into consideration. The law has started to move away from this rigid approach by allowing leeway when property division involves a pet. In Juelfs v. Gough, the Alaska family court granted shared ownership of the family dog to both divorcing spouses.3 When the situation deteriorated between the ex-spouses, the court again ruled, this time granting the ex-husband sole ownership of the dog. Alaska law now allows for the court to assign either ownership or joint ownership of a pet in divorce proceedings by taking into account the “wellbeing of the animal.”4
Similarly, in New York, “treating a pet as mere property is no longer appropriate.”5 Even though the plaintiff alleged that he purchased the dog in question, one judge still put a temporary custody arrangement in place until it had sufficient time to analyze the best interests of the dog. This is in stark contrast to pet owners in Texas.
Maine adopted a hybrid approach. Courts in Maine will consider seven factors in deciding ownership of a family pet, including the pet’s well-being and the emotional attachment of either party to the pet. However, Maine courts will award ownership of the pet to only one party in a divorce.6
Pet Issues in High-Profile Divorces
Over the years, celebrity divorces have highlighted the central role that pets place in divorce proceedings. We have seen issues of pet ownership, custody arrangements, and maintenance support play out in the public sphere. Oftentimes, the pet is the remaining issue to be decided in the divorce proceedings.
Cheryl Burke and Matthew Lawrence married in 2019 with a prenuptial agreement in place. When they divorced two years later, the prenuptial agreement made property division simple. The ownership of their dog, Ysabella, became a point of contention in their divorce proceedings. Cheryl commented at the time: “I am still really hurt by the whole situation because that is my dog. Ysabella is my daughter; I am a dog mom. I couldn’t even imagine my life without her. I could just cry right now.” Four months after the divorce was finalized, the court awarded Cheryl full custody of Ysabella, presumably because she argued the dog was a gift to her from Matthew.
Mandy Moore and Ryan Adams divorced in 2015, and they shared eight pets together. It is unclear if the couple entered into a prenuptial agreement, but if they did, it did not contain a pet clause. Mandy made an unusual request in her divorce petition: pet support. While their divorce was pending, Moore continued to pay for the support of the couple’s eight pets. She requested that Adams take custody of at least four of the pets to help with the cost of their maintenance. The couple did not make public the resolution of pet maintenance.
How to Mitigate Pet Issues in Your Marriage
Address pet issues early in a prenuptial agreement.
Couples can avoid pet disagreements by adding a pet clause to their prenuptial agreement. It’s a great idea to address these topics before a problem arises. It is reported that Cheryl Burke had a prenuptial agreement, but she and her ex-spouse still argued over her dog. In Cheryl’s case, maybe she didn’t have a pet clause. Or there might have been an argument about whether her dog was separate or joint property. In the case of Mandy Moore, a pet clause in a prenuptial agreement could have stipulated who paid for pet care while the divorce was pending and after the divorce was finalized. A prenuptial agreement is a great tool for high-dollar divorces, since it will eliminate the risk of using the pet as a bargaining chip for other high-value assets in the event of a divorce.
Can you include a pet clause in a prenuptial agreement if you live in a jurisdiction that doesn’t have a test for best interest of pets? Yes, most likely. In a jurisdiction that views pets solely as property, a court will likely enforce a prenuptial pet clause if it does not violate public policy. For example, Virginia does not have a best interest of pets statute.7 But Virginia does allow prenuptial agreements to contract the division of property in ways “not in violation of public policy or a statute imposing a criminal penalty.”8 It is hard to envision a case in which acknowledging a pet’s best interest is against public policy.
Record retention is your best friend.
Most states do not have a best interests test for pets in property division. If you live in a state that only recognizes pets as property, you will want to make sure that you are the party who adopts or purchases your pet. Maintain your records. We can assume that Cheryl Burke had to prove ownership of Ysabella through documentation, as she publicly claimed it was a gift from Matthew.
You will also want to keep any records that relate to caregiving. If you take care of veterinary appointments for your pet and pay the bills, be sure to maintain all your records. You’ll also want to consider keeping records related to services such as dog walkers or dog training to show that you provide for the maintenance of your pet. Be able to paint a picture of what day-to-day living is like for your pet. One note of caution: Maine requires courts to consider seven criteria in deciding pet ownership in a divorce case, including the ability of a party “to continue to own, support and provide adequate care for the companion animal.” While not explicitly included in other pet statutes, the financial wellness of the owner should be considered in developing a case for the best interest of the pet.
Mediation before litigation can lead to great results.
Mediation can be an excellent tool for working out issues of pet ownership. First, it offers a neutral forum for divorcing couples to work out pet custody issues privately and cooperatively. This is especially helpful if you are in a jurisdiction that does not have the best interest test for pets because mediation allows for more flexible and creative solutions than litigation. Second, mediation can generally be faster and less expensive than litigation.
Conclusion
Pets are increasingly viewed as integral parts of their families. Property law is slowly catching up, as evidenced by the uptick in adoption of best interest tests for pets. As of now, six states allow best interest analysis for pets as part of property division in divorce cases: Alaska, California, Illinois, Maine, New Hampshire, and New York. Several more states have taken steps to adopt this approach, most notably Colorado, Pennsylvania, and Rhode Island. We can expect more states to follow suit, but for now, the majority of states continue to treat pets like common property.
It is important to know where your jurisdiction stands on the issue, as we’ve seen in high-profile cases. If you currently own a pet or plan to get pets with your spouse, one solution is to consider a prenuptial or postnuptial agreement that addresses pet ownership and maintenance costs. In conjunction with this, you will want to maintain records to show the history of ownership and care. And lastly, mediation can be used either at the time of drafting the prenuptial agreement or prior to litigation to take advantage of the flexibility available through the mediation process.
Endnotes
1. Tex. Fam. Code § 7.001.
2. Arrington v. Arrington, 613 S.W.2d 565, 568 (Tex. App. 1981).
3. Juelfs v. Gough, 41 P.3d 593 (Alaska 2002).
4. Alaska Stat. § 25.24.160(a)(5).
5. Leighton v. Greess, 2024 N.Y. Slip. Op. 32537 (U) (Sup. Ct., N.Y. Cnty. July 22, 2024).
6. Me. Stat. 19-A §953 (10).
7. Va. Code Ann. § 20-107.3.
8. Va. Code Ann. § 20-150.
