For many, pets are family members. They wear costumes for Halloween, may get a treat for their birthday or other holiday, eat special pet foods, and are present in family pictures. Minnesota has one of the highest numbers of pet owning households in this country-53% of Minnesota households own pets AVMA. Meaning that most divorces are going to include the issue of where Fido goes. Which leads to the question, “who gets Fido in a divorce”.
The first step in determining where a pet goes is to enquire whether the parties signed a prenuptial or antenuptial agreement. While these agreements are more commonly used when one or both parties has a business that needs protection or assets that are to be preserved for children of a prior marriage or relationship, they can include provisions regarding the ownership, post-divorce, of pets.
Secondly, parties can negotiate through their lawyers or in an alternative dispute resolution setting (such as mediation) where pets go after a divorce. One of the primary benefits (other than, generally, cost savings), is that pet parents can craft an agreement that works best for them and one in which a Court would never order. For example, in a divorce I worked on, the parties owned two bonded rescue dogs which could not be separated and who had significant, ongoing medical expenses. The parties were able to work out a pet parenting plan where the dogs were alternated weekly and the parties agreed on a formula for determining how vet expenses were covered.
If parties do not have a prenuptial and antenuptial agreement or are unable to come to an agreement, it is the Court’s job to make a decision. Contrary to what many pet parents think, courts do not do apply the “best interest factors” to pets or provide evaluations. Instead, pets are treated as property. The initial threshold is to determine whether the pet would be considered marital or non-marital (see subd. 3b). If the pet is considered non-marital, then the court will often, but not always award the pet to the non-marital owner. Sometimes a pet that would be considered non-marital (perhaps it was brought into the marriage) will be considered marital because the Court may consider the marital assets that were expended to feed and care for the pet; the child who will primarily reside with the other parent are bonded to the pet; or the other party is extremely bonded to the animal (for example, a cat that was brought into the marriage by wife may have provided the husband with comfort as he went through cancer treatment).
If the Court determines that a pet is marital or that special circumstances (as described above) exist, the Court’s next step is to set a value for the pet. In sitting a value, the Court may look at prior offers to purchase the pet, similar pets for sale, the original cost of pet (if the pet was recently purchased), or any other reliable evidence that seeks to provide valuation. After the pet has been valued, the Court determines where the pet should reside based on many factors which may include: if there are children, where the children will primarily reside; if either party abused or neglected the pet; which party primarily cared for the pet (fed, exercised, obtained or provided medical care); and which party going forward will have the best ability to care for the pet (does one party work from home while the other party frequently travels for work).
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