According to the American Veterinary Medical Association, pet populations, particularly dogs and cats, are on the rise and expected to continue to increase through at least 2030. Many people have welcomed a new pet to the family during the COVID-19 pandemic as well. A common question that clients ask their divorce attorneys is: who keeps our fur baby?
In the Probate and Family Court in Massachusetts, as in most family courts in the U.S., pets are treated as personal property. This means that they’re divided between a divorcing couple according to the same considerations that are applied to things like the toaster, the china, and the lawnmower. Under the law in Massachusetts currently, it’s not possible to have a “visitation” schedule for pets, unlike the parenting plans included in separation agreements or divorce judgments for any divorcing couple with children. For children, courts consider the children’s best interests in determining custody and a parenting plan, but a pet’s best interests won’t be considered, and a Probate and Family Court judge won’t order a “visitation” schedule or “pet parenting plan” for pets.
So, in considering who keeps the pet, the Court will take the same factors into consideration that they do in dividing up the furniture, the silverware, and all the rest of the “stuff” we accumulate. Those factors include:
- The history of the pet: Was the pet purchased, and if so, by whom? Was the pet a gift, and if so, by whom, and to whom?
- Who “used” the pet: Who took care of her? Who fed and bathed her, played with her, cleaned her cage or litterbox, and took her for walks? Who bought her food and supplies? Who took her to the vet and groomer and paid those bills? Who spent more time with the pet?
- The potential benefits to the party who retains the pet: Which party would benefit more from keeping the pet, and why?
If you think pet ownership is going to be a controversial issue in your divorce, consider gathering documents you may have showing how your pet was acquired and who paid for her expenses. Start thinking about why you might benefit from keeping the pet more than your spouse would. Does your spouse travel extensively for work or spend long hours at the office and not much time with your pet? Is the pet more bonded to you than your spouse? If the pet is a support animal, your argument for having sole ownership of your pet will be even stronger. Consider getting notes or records from a doctor or mental health professional outlining this “use” of your pet, as well as any training certifications or other documentation for your pet that would show that she is your support animal.
If you and your spouse want a “visitation” schedule for your pet, you will have to go outside the Probate and Family Court to make arrangements. You can enter into a contract separate from your separation agreement, which should be signed and notarized and should outline ownership, the visitation schedule, and payment of your pet’s routine and emergency expenses. Perhaps most importantly, you should consider hiring experienced divorce counsel to help avoid some of the pitfalls and ensure that your plans and agreement regarding your pet will be enforced.