For many people, pets are family. Rather than thinking about issues of property and ownership, many people consider the love and affection that exists between them and their pets to be a defining aspect of their lives. For some, pets are like beloved children. It’s no surprise, therefore, that custody of pets is a priority for many people who are facing divorce.
If you are worried about what will happen to your pet after your divorce, you’re certainly not alone. TIME magazine reports that 80% of people view their pets as family. Unfortunately, court conflicts involving pets are a growing problem. In many ways, the law is ill-equipped to adjudicate conflicts concerning people’s pets, in part because the law has not kept up with the way people think and feel about them.
How Pets Handled Under Ohio Law
In a few states – New York, New Hampshire, California, Alaska, and Illinois – there are new laws that mandate that the best interest of the pet be taken into consideration when considering custody. As in most states, however, the issue of what happens to pets during a divorce in Ohio is not – at least in a strictly legal sense – a custody issue.
Instead, pets are considered personal property that can be subject to equitable distribution like any other asset. While you may not think of your pets this way, it’s still important to understand how they are seen under the law. Like any other asset, the court must decide whether the pet is separate or marital property.
Marital vs. Separate Property
As an equitable distribution state, Ohio courts consider all marital property and divide that between the two spouses equitably – that is, fairly. Before that is done, however, the court must first determine what assets are marital property and what is separate property. Marital property is generally property that was acquired during the marriage, whereas separate property was acquired before the marriage commenced.
When it comes to pets, it matters if the pet was purchased or adopted before or after the marriage. If you owned the pet prior to the marriage, that pet will likely be considered your separate property.
If, however, the pet was acquired during the marriage and you and your spouse cannot reach an informal agreement about who will keep your pet after the divorce, the court will have to determine who keeps the pet. They may consider several factors, including:
- Which spouse primarily took care of the pet?
- Which spouse purchased food for the pet?
- Which spouse took the pet to the veterinarian?
- Will both spouses have the financial means to care for the pet following the divorce?
- Is one spouse more bonded to the pet than the other?
- Does either spouse have a history of animal abuse or neglect?
- Is there a child involved that has a particular bond with the pet?
Even if they take these factors into consideration, the spouse who is awarded the pet may be required to offset this “asset” as part of an equitable distribution of the couple’s marital property.
If, however, you signed a prenuptial agreement prior to your marriage that addressed the ownership of pets, the court will likely abide by the terms of that agreement.
Mediating an Informal Agreement
Courts are not well-equipped to deal with pet custody, so it’s often preferable – and less costly – for a couple to come to an informal agreement outside of court proceedings. If an agreement cannot be worked out between the couple, mediation might also be a viable option. Seeking the advice of a compassionate and experienced divorce lawyer can help put you in a better position as you negotiate custody of your pet.
If you are going through a divorce and are concerned about what will happen to your pet, reach out to Crossman & McNamee, LLC online or call us at (937) 468-3796 to schedule a consultation today.