Throughout the course of a marriage, couples acquire many different possessions that will have varying levels of sentimental and monetary value. While it is usually easy to separate and put a value on something like a car or TV, it is much harder to put a value on items of low physical value but high emotional significance — say, a family pet.

It is fairly common for couples to have a relatively low-conflict divorce, and then get hung up when it comes to who gets to keep the dog. While the letter of the law is pretty clear on the fact that pets are to be treated as property, just like your couch or toaster, modern societal feelings have changed in this regard. Pets now hold an unofficial, yet clearly distinguished, place above mere property (and surely some pet owners would contend they are on par with people).

Confusion over the legal status of pets

Disputes concerning pets have historically been settled using property laws. However, recent cases resolved by courts have made clear distinctions that pets have “a special place somewhere between a person and a piece of property.”

While the courts would typically take a property analysis view in assigning ownership (was the pet paid for by personal funds, a gift, etc.), rulings designating pets above a mere piece of property give divorce litigants a leg to stand on in claiming that such a simplistic interpretation is inadequate.

Sure enough, there have been other cases that have used a sort of “best interests” analysis when it comes to who should get a family pet, which are typically reserved for child custody cases. However, as the judge notes in the link above, a child custody best-interest analysis has firmly rooted standards, procedures, specialized experts and quantifiable data that can be obtained. Trying to determine the “best interest” of a pet is a near impossibility, unless there are documented cases of abuse or neglect.

How courts handle pets and divorce

Likely due to the contradiction between how the laws are written and our collective societal attitude toward the status of pets, many judges do not want to spend much time at all on pets in the courtroom — the courts are already overloaded as it is, and spending an excessive amount of time litigating on the “custody” of pets is time that isn’t being spent resolving more important issues, like the custody of children.

Therefore, it is very common for judges to use a very simple approach to assign ownership that boils down to which spouse primarily cared for the pet’s basic needs. Aspects commonly reviewed include which party had a larger role in taking care of the pet’s shelter, food, walks, grooming, vet visits, training and who is better equipped to support the pet financially.

Additionally, the spouse who is not awarded the pet will sometimes be awarded the “cash value” of the pet. This may seem like a very detached method of dealing with such an emotionally charged issue, and it probably is. To avoid this situation, couples are encouraged to come to their own agreements outside of court.

Creating your own terms

While the court will settle the matter unquestioningly, there is no guarantee in the outcome. You may feel that you have a stronger case, but the decision will ultimately be left up to a judge — a judge who may feel it is a waste of time to argue for very long over a pet.

It is possible to come to your own terms for a sort of “shared custody” or visitation schedule through mediation, where the mediators will look at logistics, how much travel would be involved, the age of the pet, etc. It is important to keep the “best interests” of the pet in mind, however, when negotiating this arrangement.

While much is made of how stressful divorce is upon the people involved, the pressure felt by pets is often overlooked. For example, dogs can often suffer from depression caused by the hostile environment a household frequently becomes, being shuttled back and forth from home to home, a lack of attention from being left alone too much or any combination of new changes in their lifestyle. It is important that you keep the pet’s health in mind, and that you ensure it continues to live in the most appropriate environment.

During settlement negotiations, pets can also be a very good bargaining chip in situations where one party really, really wants the pet. If there are other contentious issues on the table, it can be much easier to reach an agreement if one side is willing to relinquish their ownership of the pet in order to achieve an overall better mutual settlement.

Keep things in perspective

It is undeniable that pet owners develop an extremely loving relationship with their pets. However, divorcing couples need to realize that going their separate ways will mean one of them will likely go on without that pet in their life. If your former spouse is more capable of caring for the dog, do what is best and let the dog live in the more suitable home.

Besides, there are millions of other dogs, cats and other animals out there waiting to be adopted. While you can never replace the love and connection you had with your family dog, you can feel comfortable knowing it will live in a familiar, loving household. Meanwhile, there’s a lonely puppy out there somewhere waiting for you to come along and give it the same opportunity.