With approximately 124 million dogs and cats living in U.S. households and countless other animals treated as members of their owner family, it is no surprise that the question of who gets the pet in a divorce is becoming more common in our courts. The laws regarding ownership of these animals does not yet reflect the true role of companion animals in many families, but it is slowly, albeit inconsistently, evolving. This question can also come up with unmarried couples who are living together, but do not have a cohabitation agreement that specifies pet ownership in the event of a relationship break up.

It surprises many people to find out that under the law of every state, pets are considered personal property. That is, the law sees your beloved dog, cat, parrot or turtle no differently than your couch. Because of this, when parties divorce the court will allocate a value amount to the animal, and include the animal among the assets to be distributed between the parties according to the property laws of their state.

Luckily for pet owners who consider their animals more affectionate than a couch, courts are starting to recognize the emotional importance of pets. Factors other than “market value” are now being considered more consistently when courts determine who gets the pet in a divorce proceeding. However, there is still an unfortunate inconsistency among the states in how the animal is viewed and whether the court will get involved in a visitation schedule.

One might assume that if the animal was your pet before the marriage that the court will necessarily side with you and award you the animal at the dissolution of the marriage. This is not necessarily so. In a state such as Pennsylvania, which is an equitable distribution state (property is divided equitably, but not necessarily equally), both parties have the opportunity to convince the judge that it would be more equitable for them to get the pet.

The issues that the court may look at in order to determine who should get the animal may include:

Best interest of human family members

If there are children involved the court will continue to assess the best interests of the children. If being separated from the family pet will be troubling or stressful for the children (and, in a divorce situation, it probably will be), the court will most likely award custody of the pet to the parent who is awarded physical custody of the children. Similarly, if there is another pet involved (say, a second dog), the court may look at whether separating the animals would be unnecessarily traumatic for them.

Purchase of animal

Which of the parties purchased the animal, and when? If the animal was bought during the marriage, the court may consider the party whose name appears on the bill of sale or pet adoption papers as the owner. In Pennsylvania, the courts will hear arguments that the non-purchasing party should be awarded the animal.

Financial ability

Quite simply, the court is going to look at who is more financially able to meet the needs of the animal. However, the Judgment of Divorce can be drafted in all states to include shared responsibility for the financial costs associated with owning an animal. These costs may include medical costs of the animal, as well as grooming, food, dog-walkers and training.

Humane elements

The court may also look at the work responsibilities of the party in relation to the needs of the animal. For instance, if the animal (such as a dog) will spend a significant part of the day in a crate while its owner works, the court may not consider that the best situation for the dog and look at whether the other party’s situation would allow more daily movement for the pet.

Primary caretaker

The court will look at who primarily takes care of the animal. There are many facets to this element. In addition to who walks, feeds and spends the most time with the pet, the court may also look at who takes the animal to vet visits, and who takes care of making sure that the animal gets all necessary vaccinations and is properly licensed with the local authorities.

In order to prove which party functioned as the primary caretaker, the court may hear the testimony of neighbors who witnessed the animal being walked or groomed, as well as the family vet. The vet can offer testimony regarding who brought the pet in most often and how the pet appeared to be cared for.

Sometimes this analysis has led to surprising results. In Virginia, a court awarded possession of a cat to a roommate who was not the cat’s original owner after determining that the cat had bonded with the roommate to such an extent that allowing the original owner to keep the cat would not have been in the best interest of the animal. Courts have also considered whether other animals already in one party’s custody would endanger the animal.

Although the courts are becoming more understanding about the position pets hold in a family, they are still not likely to create a visitation schedule for an animal. This is partially the result of pets being considered personal property under the law. Also, since the courts’ primary concern is humans, they must focus on the enforcement of visitation schedules of children; it is unlikely that moving forward they will take upon themselves enforcing visitation schedules for animals.