Who Gets the Pets in a Divorce? Everything You Need To Know About Pet Custody in Colorado

Articles | 2.15.2017

You might think of your dog as your child, but Colorado law does not agree. So who gets the pets in a divorce? Shareholder Elizabeth Bonanno explains what you need to know before fighting over Mr. Wags.

From breweries to shops to restaurant patios, Colorado’s pets Custody over dog in divorcecan be found enjoying all the creature comforts the state has to offer.  And why not?  Our pets are our family, and life is made all the more sweet when we can share our world with them.  But what happens to our furry family members when the pet parents’ relationship ends?  Here’s what you need to know when your animal companion is caught in the crosshairs of divorce:

  1. Though our pets feel like our family members, they are still considered “property” under the law.

In divorce cases, the “best interests of the child” standard is applied to determine parenting time and decision-making arrangements for minor children.  The Court looks to a number of factors, to include the wishes of the child, the child’s interaction and relationship with each parent, and the child’s adjustment to his or her some school, and community, among others.  While you may feel that such rigorous assessment should also be applied when determining where your pet will live post-divorce, there simply is no “best interest of the pet” standard.  Instead, the Court sees your pet as an item of property (though perhaps with a bit more compassion), to be allocated under the property division statute.

So what does this mean?

Well, the Court first must determine whether the pet is marital or separate.  A pet is generally “marital” if it was acquired during the marriage as opposed to prior.  Any pet belonging to one of the spouses before the marriage would be that person’s separate property, and could not be awarded to the other spouse during the divorce.  However, a pet is also a spouse’s separate property if, even though acquired during the marriage, it was gifted or inherited.  So, if your spouse is trying to lay claim to the puppy you got for your birthday, try to find any evidence you can (a card, a text, even a photo) to show that Mr. Wags was gifted to you.

If you can make no separate property claim to your fur baby, the next step is to claim that allocation to you would be the fair outcome based on the various property factors the Court considers.

  • You could argue “contribution,” whereby you would lay out to the Court how you have contributed to the care of the pet in ways that your spouse has not.  If the pet is truly yours – relies on you for feeding, walking, emotional support and the like, this is the argument for you.
  • If your spouse already has a separate pet, you could argue that fairness requires you to retain the marital animal.  While pet parents may see the downside to separating two pet friends, the Court will see this as an easy way to get you each what you want.
  • If you also have children and are the primary parent, you could argue that the pet should stay with you, where the children reside the majority of the time.  The property statute specifically provides that the Court is to consider the desirability of awarding the family home to the parent with whom the children primarily reside, so why not extend that logic to the family pet?

But what if the pet truly is joint and both of you have just as good of a claim as the other?

  1. A good compromise is the best way to get a more creative “co-parenting” pet arrangement.

Just like the old Judgment of Solomon, the Court cannot “split the pet.”  Unlike a child custody determination, where the Court makes a visitation schedule for children, the Court is highly unlikely to make a custody schedule for your pooch (or cat, or rabbit, or your beloved sugar glider).  In fact, Colorado has found it against public policy to keep divorced spouses “in business” with one another.  So, just as the Court is unlikely to maintain ex-spouses’ co-ownership in investments or business interests, it is also unlikely that the Court will begin dabbling in the trade of doggy parenting plans.

Settlement, on the other hand, allows you to address a disputed pet more creatively.  Is there something else your spouse really wants, even more so than the pet, that you could swallow to maintain ownership?  If your spouse is willing to trade money or some other asset for you to maintain ownership of the pet, it is extremely important to fully consider the economic impact to you and whether you will be able to appropriately provide for yourself moving forward before you make such a trade.

Settlement also allows you to create one of those doggy visitation schedules from which the Court shies away.  Pet parents may reach a contractual agreement providing for alternating weeks with the pet, a schedule whereby one party primarily owns the pet, but the other spouse has weekend visitation, etc.  While the combinations are endless, it is always important to remember that a doggy visitation schedule will keep you in contact with your ex-spouse, even when you don’t want to be.  So, if you foresee this as another venue for conflict, be very wary.  It is also important to remember to make provisions for the division of expenses like vet visits, medication and the like.  A pet visitation schedule should be entered into with caution and is only for those ex-spouses who are truly able to cooperate.

  1. Finally, what if your spouse has left you to care for a pet that you can’t afford?

While we all love our pets, there is no doubt they can come at a significant monthly expense.  This cost is only exacerbated when one household becomes two and you are worried about meeting your own monthly expenses, let alone the particular medical needs, or other care issues associated with a pet.  If your spouse has left you to care for the family pets and you cannot afford to do so, make sure to include the pet’s monthly care expenses when making your claim for the amount of spousal support you will need.  If you still cannot afford the expense, it is okay to look to a trusted family member or friend to care for your pet until you can get on your feet.  Divorce is difficult, but it’s important to remember there is light on the other side, and you will be okay.  And so will Mr. Wags.