Divorce in California: Who gets custody of the pets?

by | Mar 28, 2022 | Divorce

For many couples, pets are considered as important as their children. For couples without kids, pet custody may be the most important issue in their divorce.

Many other states look at a family pet as just another asset, awarding ownership as part of the asset division process. In 2019, California changed its approach to the handling of pet custody disputes in divorce. The new law empowered judges in cases of divorce and legal separation to consider what’s in the best interest of “the pet animal” when deciding pet custody – similar to considerations in child custody matters.

Law around pet custody continues to evolve

Before the 2019 law was enacted, California courts considered pets as community property (property acquired during marriage) that’s owned equally and is to be divided equally in divorce.

When Governor Jerry Brown signed AB 2274 in the fall of 2018, it amended the state’s Family Code to differentiate companion animals from inanimate community property such as cars, iPads, TVs and chairs. The law we have now is a much more accurate reflection of how people feel about their companion animals than was previously the case.

Under the new law, courts award pet custody based on what arrangement is in the animal’s best interest. They may consider questions like:

  • Who primarily cared for the animal?
  • What is each party’s work schedule and availability to care for the animal?
  • Can each spouse financially afford to care for the animal?
  • Who first acquired the animal?
  • Would the animal’s health and safety be at risk with one of the parties?

The result may be total ownership by one party, or potentially a shared custody arrangement in certain situations. If children are also involved in the divorce, the court may also take the child custody arrangement into account when deciding on pet custody.

Be proactive: Consider signing a “petnup”

While the law remains fuzzy and continues to evolve, one way couples can be proactive is by drafting a “petnup” agreement.

Similar to how a prenuptial agreement lays out the terms for what would happen to particular assets in the event of divorce, a “petnup” could create a plan for pet ownership in the event of a divorce. This can be particularly useful for pets acquired during the marriage, where both spouses contributed equally to its care. By deciding on a custody plan ahead of time, you can avoid some of the legal grey areas and the contention that would arise during divorce proceedings.

“Petnups” are gaining popularity among younger couples, and could help you save hours of time and a substantial amount of legal fees if you do end up getting divorced. When you value and treasure your pet above all else, a well-drafted agreement can help ensure you do not lose custody if the marriage ends.