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Who Gets the Dog in a Divorce?

You’ve heard of unhappy couples “staying together for the children,” but what if those “children” are fur babies? Some pet parents care as much for their animals as other parents do for their human children. But is there such a thing as “pet custody?” Who gets the dog in a divorce? Read on to find out!

Pets are a huge part of many families. They provide companionship, joy, and protection. They are often as attached to their humans as their humans are to them. So, what can you expect in court when that special bond is threatened by divorce? Do pets have any rights?

The short answer is “no,” but if you are a pet parent don’t despair! Like most things in the law, the answer isn’t that simple.

Under Wisconsin divorce laws, domestic pets are considered personal property—just like vehicles, clothes, or dishes. If you or your spouse breed and sell your animals, they might also be considered business assets. Therefore, the court will be obligated to “divide” your pets along with the other personal property by awarding the pet to one party or the other (or, in the case of multiple pets, by possibly separating them and awarding one dog to each party, for example).

Parties who find such dispassionate treatment of their animals unconscionable may find a ray of hope: Even though the judge is required to treat the animals like property, the parties to a divorce are not. Parties to a divorce can agree to treat their pets unlike property and more like children and the court will often honor such agreements. Also, some litigants are fortunate to find the judge assigned to their case is a pet-lover and may share the parties’ sentiment that animals should not be disposed of or distributed like inanimate objects. A judge of this ilk is likely to allow the parties to argue for “custody” or “visitation” of their pets much as they would for human children as long as both pet parents agree the animals should not be summarily treated as property.

What Happens if the Parties Can’t Agree Who Gets the Pet?

First, much will depend on the judge assigned to the case. If they respect that animals have unique feelings and attachments, they may allow the parties to pursue unique remedies related to the disposition of their animals.

For example, the court could order the parties to attend mediation where they could work out their own agreement detailing the terms of pet custody and visitation and setting forth financial responsibility for the animal and the parties’ rights to make major decisions such as for breeding or euthanasia.

If the parties succeed in reaching an agreement, the court will incorporate it into the parties’ final judgment of divorce. The parties’ agreement will then become binding and enforceable.
Some pet custody decisions parties should consider may include whether to enroll the animal in daycare, choice of veterinary care, whether to allow international travel, whether to breed the animal, and whether to allow major surgery or euthanasia.

Sample pet visitation arrangements might include each party having the animal for a week at a time with a trade-off on the weekend; one pet parent who works at home having the pet during the day while the other pet parent picks up the animal after work and has it until the following morning; or in the case of two dogs, for example, each pet-parent being awarded one dog while they agree to enroll the dogs together in doggy daycare so they can see each other and play every day.

Financial considerations for pet parents might include how to share the cost of boarding or training, how to share the cost of food, treats, and toys, and how to share the cost of veterinary care or pet insurance.

What if Parties Fail to Reach Their Own Agreement?

If the judge allows the parties an opportunity to reach their own pet custody agreement and they still cannot agree, the parties will have to submit the issue to trial.

At the trial, the judge will hear testimony about each party’s bond with the animal, the extent of both parties’ participation in the animal’s care, their respective contributions to its financial costs, and why the animal would be better off with one party or the other. Both parties can call witnesses and present evidence which might include veterinary records and bills, photos or videos, and testimony from pet-sitters or dog-walkers. The case might even include expert testimony and reports from animal behavioral specialists or certified animal trainers.

At the conclusion of the presentation of evidence at trial, the judge will award the pet to one party or the other at a value to be determined by the court. This value is often based not on the intrinsic or sentimental value of the animal, but rather on the amount you could expect an independent third-party to pay to adopt the animal. It can be quite jarring for parties to learn their priceless animal, who has inspired thousands of dollars of litigation, is worth only $200.00 in the eyes of the court.

Again, it is possible a sympathetic judge will not award the animal like a piece of property and will instead set a custody and visitation arrangement between the parties—but whether to proceed in this manner is entirely within the judge’s discretion. Absent a sympathetic judge, the animal will be treated like personal property.

If the parties encounter an unsympathetic judge or one who is entirely unmoved by animals or who is a rigid adherent to the idea that animals are property, the result could be very different: The judge could order that the animal be sold, and the proceeds be divided between the parties.

Divorcing parties who have human children sometimes find a convenient solution: They treat the family pet not as their own personal property, but as the property of their children. As a result, they agree that the family pet should be shared in the same manner and on the same schedule as their human children. Accordingly, the animal goes back and forth with the kids and the parents share the costs in the same proportion that they share the costs of their children. But, again, absent such an agreement, the judge will not independently assign the animal to the children: He will divide it along with the Tupperware.

If you have questions or concerns about how your precious pet might be treated in a divorce, or if you believe you and your spouse may have divergent ideas about how to approach pet custody, talk to one of our attorneys before it becomes a “bone” of contention.

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