Deciding Who Gets the Family Pet in a Divorce

Despite the popular use of the term “pet custody,” household animals are generally considered property under New York law, and divorce courts include them as part of the process of equitable distribution. However, recent changes to state law require courts to weigh special factors in deciding which of the former spouses will be awarded the family pet.

Known in New York law as a “companion animal,” a pet is any cat, dog, or other domesticated animal kept in or near the household of the owner or other person who cares for it. This does not include a farm animal raised for commercial or subsistence purposes, but it could include a farm animal kept as a pet. Service animals are also excluded and treated as the separate property of the spouse they assist.

In the past, divorce courts faced with deciding the fate of the family pet simply looked at which spouse purchased or otherwise acquired the animal and ascribed a monetary value to it. However, effective October 25, 2021, New York added a provision to its equitable distribution statute, requiring courts to consider the best interest of the pet. Judges weigh the following factors, among others, in making this decision:

• Primary caregiver — Preference may be given to the spouse who feeds, exercises, and provides veterinary care to the pet regularly. The extent of care and affection provided by either spouse can significantly impact the court’s decision.
• Emotional bonds — The judge can consider the emotional distress that separation would cause to the spouse with the strongest attachment to the pet and/or to children of the marriage who may have formed such an attachment. 
• Suitable living situation — The judge will seek to ensure that the pet will be kept in an environment conducive to its health and well-being. 
• Evidence of abuse or neglect — Courts will take into account any evidence of a history of abuse or neglect by either spouse, in order to protect the physical welfare of the pet.

The end result of the court’s evaluation will be the award of the pet to one spouse, often with a monetary credit given to the other spouse. Divorce courts will not order joint ownership of the pet, as this would likely lead to future disputes. If the spouses wish to have a time-sharing schedule, they need to work out their own “pet custody” agreement. A prenuptial or postnuptial agreement can also include such provisions. An experienced family law attorney can help create a suitable document. 

The attorneys at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York, work with clients to address the various complications they experience in a divorce, including the division of prized possessions. To discuss your legal issues and learn how we can help you, call us at 631-360-0400 or contact us online.