Pets are an important part of our families and can become a significant issue when couples undergo divorce. Although family law has not kept pace with the proper care of our pets, spouses can take measures for their care and well-being and to assure a fair and helpful pet custody decision during property division.
Like most states, Indiana law considers pets the same as personal and inanimate property that has the same status as furniture and jewelry in a divorce. But courts are considering custody agreements and the best interests of the pet with more frequency.
Pet’s best interest
The pet’s best interest, not any advantage for a spouse, should be the most important consideration. It may be helpful to seek a veterinarian’s advice on the environment where the pet should live and how to maintain its health. Staying with the primary caretaker may be the best for the pet.
Going to court
Because pets may be considered property, you may improve the odds of keeping the animal if you can submit proof that you purchased it before marriage or used non-martial money to buy the pet. If you did not pay for the pet’s care during marriage, you may have to reimburse your spouse for that care if you receive custody.
The spouse seeking pet custody may have an advantage by keeping the animal during the divorce. This could be considered as evidence of being the pet’s caretaker when the court determines custody.
If the couple jointly purchased the pet during their marriage, the pet may be considered as joint property. A spouse may show, however, that they were its primary caregiver by providing information from the pet’s veterinarian that one spouse took care of the pet and brought it in for treatment, letters from neighbors discussing which spouse walked and spent time with the pet and evidence that one spouse’s schedule allows them to spend more time with the pet.
A spouse seeking custody may also show their ability to pay for its care. Provide evidence such as receipts for veterinary care and pet food and grooming supplies. Also, submit a plan covering pet care if you become hurt or sick and a recent pay stub.
Carefully consider your spouse’s motives if they are seriously arguing for pet custody in court or negotiations even though they never cared much for the animal. That spouse may be using the pet as a method to force a better division of property, to exert control and, if that spouse was a domestic abuser, as a demonstration of their power or an unstated threat against the pet.
If your spouse’s motives are selfish or manipulative, it is important to develop legal arguments and present evidence revealing these motives and does not have the pet’s best interest in mind.
Prenuptial and postnuptial agreements
Spouses can try to reach their own decisions on custody by addressing this in a prenuptial or postnuptial agreement. If this was not specifically covered, however, review any agreement to determine whether it addresses whether the pet is one spouse’s property or if it has language to support arguments that the pet belongs to one spouse.
If the spouses have predictable schedules and the pet could adapt, they can negotiate a custody agreement. It is usually better to exchange the pet on a monthly or bi-monthly basis instead of weekly. Spouses who work from home may be better for weekday custody. Spouses should also determine or allocate the payment of expenses such as veterinary care, supplies, and food.
An independent mediator may also assist the spouses with developing their own agreement without having one imposed upon them by a judge. Mediators may suggest, if the spouses agree to sole custody, that the other spouse receive the funds to buy a pet like the one they are surrendering.
An attorney can assist spouses with negotiating and preparing settlements for this custody and other divorce issues. They can also help protect their rights during settlement negotiations and legal proceedings.