Pets are often regarded as beloved members of the family. But what happens to them when a couple decides to divorce? The debate over pet ownership may cause added stress, becoming one of the hardest decisions for either party to make. Fortunately, Virginia law provides a clear basis for pet ownership in the event of divorce.
Are pets considered separate or marital property?
Although pets are considered furry friends to their owners, they are considered property in the eyes of Virginia law. The pet is considered separate property if one party owned the pet before marriage. If the pet was adopted during the marriage or marital assets were used on the pet’s care, the pet is considered marital property. However, pets can also become commingled, meaning they started as separate property but became marital property after the couple was married.
What factors do courts use to determine who keeps the pet?
Typically, courts prefer disputes over pet ownership to happen outside the courtroom. The ownership of the pet could be easily resolved in certain situations, for instance if one party expresses clear interests in ownership over the other. But what happens when the decision is not easily reached by either party? The court will look at several key factors when determining who keeps the pet:
- Who owned the pet first?
- Who is the pet more bonded to?
- Who is the primary caregiver of the pet?
- Does any party have a history of alcohol or substance abuse?
- If the couple has children, is it safe to have the pet around?
- Which party can provide a safer environment for the pet?
In order to gain ownership, one party must provide concrete evidence that they are the primary caregiver of the pet and can provide better care for the pet over the other. This could be through paid vet bills or clear records, such as pictures or videos, of time spent with them. The judge will ultimately determine what’s best for the pet through these factors. In some cases, a judge may consider a visitation schedule or if there are children, the pet may follow the custody schedule.
Can we have joint custody of a pet?
The party’s can decide to enter joint custody with the pet through a property settlement agreement (a “pet custody agreement”). Much like with children, an agreement for pets includes determining when and how much time the pet will spend with each party. The party should also resolve health expenses and health decisions for the pet.
What does a pet custody agreement look like?
An agreement with regard to the pets is a contract that outlines the care of a pet or pets that once lived with two married owners, who are now separating and going through a divorce. The agreement establishes who takes possession or ownership of a pet, or if there will be some time sharing or shared financial responsibility for the pets.
The basics of a pet custody agreement include general information about both divorcing spouses, the pet(s), and specific terms for the future of the pet like visitation schedules, medical costs, etc. Having a conversation about the plans while being married allows you to have an idea of what may happen in case of a divorce. However, the agreement can be formed during a separation.
Depending on the type of animal, it can also include terms related to the breeding or stud fees, how any offspring will be shared, and whether the person who does not have ownership will have an opportunity to take ownership prior to the pet being surrendered to a shelter.
How do I negotiate a pet custody agreement?
While making plans for the ownership or custody of a pet, it’s important to consider not only the wants of the family but also the well-being and safety needs of the pet. Considering the financial and living situation of both spouses after a divorce is important, as well as any custody agreements with regard to the children of the marriage.
Some families have pets travel between homes on the same schedule as the children if the pets are service or emotional support animals or if the family believes that doing so will ease the transition between households for the children. Other families divide ownership of the animals so that the parent who does not have the children for the majority of the time will not be isolated or that the parent who has the children the majority of the time will not be overwhelmed.
When to speak with an attorney
Worried about being separated from your furry friends because of a divorce? Contact family law attorneys Alan Plevy at abplevy@smolenplevy.com or Kyung (Kathyrn) Dickerson at kndickerson@smolenplevy.com for assistance.
About the Authors
Alan Plevy
Alan Plevy is a recognized force in family law, mediation and litigation, with more than 40 years as one of the most experienced divorce lawyers in Virginia. Mr. Plevy is known for being a tenacious litigator and negotiator who is zealously devoted to his clients. A top legal publication, Virginia Lawyer Weekly, noted Mr. Plevy’s impact on the law when it named two cases he litigated among its Top Five Landmark Family Law Cases in Virginia. Those two cases, which date back to the 1980s, are still regularly cited by attorneys and courts.
Kyung (Kathryn) Dickerson
Kyung (Kathryn) Dickerson is a principal at SmolenPlevy in Vienna, Virginia. She is a graduate of the University of Virginia and George Mason University School of Law, where she served on the Board of Editors for the Journal of International Legal Studies. Ms. Dickerson is also presently General Counsel for the Asian Pacific American Bar Association of Virginia and has served as President of the organization and on its Board of Directors. She has also served on the Board of Directors of the Virginia Women Attorneys Association and served as its President. She has served on numerous committees of the Fairfax Bar Association and as President of its Young Lawyers Section and as Co-Chair of the Revenue Development Committee.
