Dividing Family Pets As Property in Arizona Divorce
In every divorce, there will be some emotionally challenging decisions.
One of those decisions revolves around determining the future of the family’s pets.
With children, negotiating a parenting plan naturally gives rise to questions about living arrangements for the family dog, cat, horse, bird, rabbit, or hamster.
Even where there are no minor children, the affection invested in one’s pet can be a source of angst and manipulation.
Sadly, many furry friends end up in animal shelters when their owners divorce or separate.
Arizona Divorce Laws and Pets
In Arizona divorce law, there is no real distinction between work animals, livestock, racehorses, assistance animals, and family pets. They are all considered to be the property of their owners. Live property, but property nonetheless.
What tends to differ widely is valuation. Some animals earn money for their owners. Some owners are hobbyists, enthusiasts who spend a fair amount of money showing their animals and competing. The entire family may be engaged in the competition lifestyle, one that involves local, national, and sometimes international travel.
These are often high-maintenance animals participating in high-priced events. A few examples are 4-H, rodeo and equine competitions, AKC dog shows, and CFA cat shows. The investment necessary to acquire the animal and participate in these activities can be substantial.
Because divorce requires the division of all marital assets and debts, the spouses’ 50/50 community interests in live property must be settled, too. To learn more about how property in general is handled in marital dissolution, annulment, or legal separation, definitely read our discussion on Dividing Property in Arizona Divorce.
By way of example only, say the spouses own one dog and one cat. The simplest, most obvious division would be to award the dog to one spouse and the cat to the other spouse. An equalization payment may level out any disparity in value between the two animal assets.
On the one hand, maybe this easy solution works for the parties. On the other hand, it disregards any emotional component of pets as family members, which is how most people view the special relationship they have with their animals.
Fortunately, spouses can negotiate an agreement regarding their animals with help from their divorce attorneys. We will get to that, but let’s start from the beginning – the law in Arizona.
Pets Are Personal Property in Arizona Law
Regardless of the animal’s unique role in the family, pets are personal property.
In divorce proceedings, personal property must be allocated as either the separate property of one spouse or the marital property of both spouses. ARS § 25-211. Whether canine, feline, equine, or exotic, if the animal is designated as community property (an asset acquired during the marriage), then the pet must be divided between the parties.
Although sporting and competition animals (for example, racing breeds and show animals) tend to be expensive to acquire and maintain, most family pets have no significant market value (and may still be expensive to acquire and maintain).
Instead, the pet’s “value” tends to be in the relationship and affinity its owners have for it. This can make deciding who gets the pet very difficult because one party must ultimately surrender possession of the animal they hold so dear. That is, unless an agreement of shared pet custody is included in the spouses’ separation agreement.
Pet Custody Agreements
The break-up of a marriage can sometimes result in re-homing the animal. Neither spouse may be in a position to take over exclusive custody and control of their once-shared pet responsibilities.
Some of the most common reasons why people relinquish their pets to animal shelters are divorce and personal problems, relocation or lease restrictions, and insufficient time available to spend with the animal. With pets in divorce, there are alternatives.
Some states are beginning to recognize the need for judges to consider the animal’s well-being when determining which spouse will get ownership in the divorce. (In 2017, Alaska statutory law now requires this.) However, there is no legal criteria for pet custody in Arizona divorce.
Still, spouses may apply visitation and shared custody principles to an ongoing relationship with their animal companions. This is done by agreement, so it is important to arrive at a pet custody plan that works for both parties.
Voluntary Joint Custody of Pets
The spouses are free to enter into a voluntary arrangement for the future care, custody, and control of their living property. For some families, sharing possession of the animal is a reasonable alternative.
The pet might spend weekdays with one party and weekends with the other, for instance, or some other time-sharing arrangement. A creative visitation schedule can be negotiated as part of the couple’s divorce settlement.
Given the fact that at least one spouse will be leaving the marital home, be prepared for changed circumstances – home life will be different. Carefully consider any new accommodations before taking a position on disposition of the family pet.
Many landlords prohibit pets with the exception of assistance animals. Other rentals allow pets, but charge additional fees or limit canines by size and breed. Some residential communities have a strict no-pet policy with the exception of assistance animals.
When the Family Pet Is Separate Property
Did one spouse own the pet before the marriage? If so, speaking strictly of Arizona divorce law, then the animal is that spouse’s separate property. However, that does not mean awarding the animal to its legal owner as his or her separate property is best for the children, for either parent, or for the pet. Agreement on a well-crafted arrangement can offer a better solution.
If a family dog or cat is the separate property of one spouse, a pet provision may be included in the separation agreement. The dog or cat that is the separate property of one spouse may be given to the other spouse, perhaps in exchange for some other property item. Or an arrangement could be reached that allows the pet to spend quality time with the other party during a kind of “pet visitation.”
Mediating the Future of a Family Pet
Before and during divorce proceedings, the spouses with their attorneys will negotiate and attempt to resolve by agreement as many issues as they possibly can. Mediation is frequently used to resolve child custody and arrive at a parenting plan. Any unresolved issues are decided by the judge at trial.
Take a moment to read our discussion on mediation and alternative dispute resolution in family law to learn more about this process.
The spouses may present any legal issue to a private mediator as part of their divorce mediation, including a plan for the future of the family’s pets (which, as already noted, is part of their property division). As with any other disputed issue, the mediator will list the parties’ points of agreement and contention, adding reason and neutrality to the decision-making process.
What might pet mediation cover?
Important pet discussions encompass the animal’s relationship with each member of the family, along with more practical matters. Consider the following:
- Is one spouse more dependent upon the pet than the other?
- Will animal behavior training be needed? Upsetting an animal’s routine could increase the risk of behavioral problems or bite injury.
- Does one spouse have special training in animal care, such as a vet, vet’s assistant, trainer, or handler?
- How old is the animal? Does it require special care or medication?
- Who will regularly exercise the animal?
- Who will pay for food, grooming, and veterinary expenses?
- Between the spouses, who is in a better position to care for a pet?
- Where will each spouse live after the divorce?
- How well might the pet adjust to new living arrangements?
- Would it be better to introduce a new pet later on, after things have settled down?
- Will leaving the animal unsupervised for hours at a time while at work create a problem (for example, create a barking dog nuisance)?
- Will the animal suffer stress or have difficulty adapting to change?
- How will final disposition of the family pet as property in the divorce impact the children’s best interests?
- Will pets accompany the children for parenting time?
- Are the children mature enough to understand how their relationship with a horse, dog, or cat may change with their parents’ divorce?
- Is there any history of domestic violence or abuse?
These pet considerations and others may be raised and addressed during mediation. When pets are part of divorce, try to agree on a plan for them.
Sometimes an agreement on who gets the family pet is not forthcoming through negotiation or mediation. When that happens, it may be necessary to litigate division of the pet as property at trial.
Tips for Winning Custody of the Family Pet in Divorce
As parents, attorneys with Stewart Law Group fully appreciate the companionship role that animals play in our lives and in the lives of our children.
In family law practice, though we are seeing a national trend toward contested pet custody cases, the law in Arizona still holds that a pet acquired during the marriage is community property to be divided in divorce.
Although you should consult an attorney about your specific circumstances, the following pointers could help your case for being awarded the family pet:
- Show the court how you were the primary caretaker of the family pet during the marriage.
Were you the spouse who trained the dog, exercised the horse, fed the rabbit, took the bird to the veterinarian, and administered the cat’s medication? All of those factors support your being the best choice for ownership of the animal because you exercised greater custody and control of the pet during the marriage.
- Show the court that you are capable of continuing to care for the animal after the divorce is final.
Not every animal is easy to care for. Some require significant time, grooming, personal attention, physical activity, and money to maintain. Make sure the judge understands that you are capable of continuing to care for the family pet by specifying what the animal’s needs are and how you will provide for those needs. This is good planning and establishes that you have deliberated over all of the relevant issues relating to animal ownership.
When the family pet happens to be a large animal, such as an equine, the parent will need to provide sufficient acreage or have the financial resources to board the animal. When ownership of more than one animal is at issue, dogs and cats may fair better when they remain together. Separating pets may result in animal anxiety and behavioral problems, so keeping them united might be best. (Unless the dog and cat never got along in first place!)
- Show the court that, because you will have the child living with you most of the time, keeping the family pet at your residence is important to the child’s well-being.
The parent with whom the child resides most of the time (formerly the primary physical custodian) may argue that keeping the family dog or cat is essential to the child’s successful transition into a substantially changed post-divorce living arrangement. Understandably, the child of divorce may feel a profound sense of loss in the absence of the other parent. Removing the pet from the child’s household could cause him or her to suffer an even greater sense of loss. When a child has a strong attachment to the pet, the animal’s very presence in the home may improve that child’s happiness and sense of security. Both are important factors in awarding the family pet.
- Impress upon your family lawyer the importance of being awarded the family pet.
Divorce attorneys are smart people, yes, but they are not mind readers. Because your attorney will be negotiating many property issues on your behalf, clearly convey how very important it is that you be awarded the family pet in the divorce.
Pet Custody in Premarital Agreements
Lastly, when two people plan to marry and intend to acquire animals, a premarital agreement could save them both a lot of grief and legal fees in the event of a separation or divorce somewhere down the road. See ARS § 25-201.
Additionally, many animals have very long life-spans requiring some forethought. (Expect 60 years for exotic Macaws, for example, 17 years for Chihuahuas and 16 years for toy poodles!) Including a plan for custody of the family pet well in advance of acquisition can be beneficial for everyone.
Contact the Stewart Law Group about the benefits of having a prenuptial agreement with provisions for the disposition of pets and other assets.