Who Gets The Dog When We Divorce?

When couples divorce, there are many questions to answer. Is alimony being paid? What about custody? Who gets the family home? But for some couples, one of the most emotional questions is: “Who gets the dog when we divorce?” For some, the answer is clear- one spouse may have a more flexible schedule or be the dog’s primary caregiver. For others, though, this can be a painful and contentious issue. After all, we’re talking about a living thing, not an end table or a timeshare. Here’s what you should know about dog custody during divorce in Massachusetts.

Dogs and the Law

The first thing to note is that, when talking about “dog custody,” it is not the same thing as “child custody.” While many people view dogs as part of the family and have a strong emotional attachment to their pets, this is not how the law views dogs.

In Massachusetts, pets are legally classified as personal property. This means that during a divorce or separation, the courts treat animals much like any other asset, such as furniture or household items. While Massachusetts law protects pets from cruelty and even allows for trusts to be created for their care, it does not recognize them as having a legal status beyond property. Because of this, the starting point for determining what happens to your beloved family member starts with the rules for property division.

Factors Courts May Consider When Deciding Who Gets the Dog

However, we mentioned that the law protects animals from cruelty, abuse, and neglect. So we end up straddling this line where property division rules are the starting point, but animal abuse laws create a framework that asks very similar questions to what the court might ask in child custody cases. For example, courts will evaluate: 

• Initial Ownership: Was the pet adopted or purchased before or during the marriage? Pets owned prior to marriage are typically considered separate property, meaning that they will be assigned to the person who originally owned them.
• Primary Caregiver: Who handled feeding the dog, taking it to the vet and the groomers, and was responsible for the pet’s training?
• Financial Responsibility: Who paid for food, medical bills, and supplies?
• Living Arrangements: Which home environment is more suitable for the pet’s needs? If, as a result of separation
• Emotional Bond: Some judges – though not legally required – may consider a pet’s attachment to one spouse. There is a real concern for things like separation anxiety and neurosis when a pet is separated from the person they have imprinted on or are more heavily bonded with, and that can play a factor in the judge’s decision.

Ultimately, ownership is usually awarded to one spouse. However, if both parties can come to an agreement, a shared arrangement can be written into the divorce settlement.

Can My Ex and I Agree on Dog Custody in the Divorce Agreement?

Couples can address pet custody in their divorce settlement agreement to reduce conflict. Some divorcing couples choose to establish a shared custody arrangement for their pet. In these situations, the spouses work out a schedule that allows the animal to spend meaningful time with each of them. For example, the pet might live with one spouse during the week and the other on weekends, or the schedule may rotate every few weeks. This type of arrangement can help preserve the bond between the pet and both owners. 

Alternatively, some divorcing couples will agree that one person will take care of the dog after the divorce. Their lifestyle or interest may support the dog living with just one person. For instance, one ex may move into an apartment that does not accept dogs, or work a job with long hours. Additionally, the former partners may decide that it is not in the dog’s best interest to bounce between homes.

It’s worth noting that shared pet custody is possible but requires ongoing communication with your ex-spouse. If your soon-to-be-ex is someone you can’t stand, you may want to reconsider entering a custody agreement with them over the pet. You should also be aware that adding these terms to an agreement accepted by the court makes them binding for the duration of the agreement or your pet’s life. That means you have to ensure that you are meeting all your obligations for pickup and dropoff, time shares, health and well-being, etc., or you can have a complaint for contempt filed against you.

Avoid Future Disputes with a Pet Clause in a Prenuptial or Postnuptial Agreement

Planning ahead can save emotional distress down the road. Because pets are considered property under the law, you can assign ownership and custody with a pre- or postnuptial agreement.

Pre- or postnuptial agreements are legally binding contracts made before or after marriage that outline how certain assets, responsibilities, or issues will be handled in the event that the couple divorces. Couples can decide about dog custody in a pre- or post-nuptial agreement. By addressing ownership, custody, and even financial responsibility for a pet within these agreements, couples can establish clear expectations before conflict arises. Including specific provisions for who will retain the pet, as well as whether visitation or shared responsibility is appropriate, often prevents emotionally difficult disputes during divorce proceedings. Courts are generally inclined to uphold such agreements if they are properly drafted and enforceable under state law. 

What if We Do Not Agree on Who Gets the Dog?

It is a more challenging situation if the partners do not agree on who has possession of the dog. Couples might consider attending mediation to resolve this issue. Mediation is a collaborative process in which a neutral third party facilitates discussion and helps the spouses work toward a resolution that meets both of their needs. Through mediation, couples may agree on shared custody arrangements, visitation schedules, or the division of financial responsibility for the pet’s care. This is not necessarily what a court will order. Additionally, mediation is less expensive and less time-consuming than a court proceeding. 

If the couple either opts out of mediation or does not reach a resolution in mediation, then a court decides. Typically, courts award sole ownership of the pet to one spouse, taking into account factors such as primary caregiving, the pet’s established living situation, and overall well-being. In some instances, the spouse who does not receive the pet may be entitled to financial compensation reflecting their share of the pet’s value

How to Strengthen Your Case for Pet Ownership

Partners who wish to have sole ownership of the dog can best prepare by gathering any documents that establish your original ownership of the pet prior to marriage. This might include:

• Adoption or purchase records
• Microchip or registration papers
• Veterinary and vaccination records
• Grooming, boarding, and training receipts
• Proof of food or medical supply purchases

These records show both your financial investment and emotional commitment to your pet. 

Contact an Experienced Massachusetts Divorce Attorney

When couples divorce, deciding who gets the dog is rarely a simple matter. If you are facing divorce and are concerned about your pet’s future, consulting an experienced Massachusetts family law attorney with experience with furry family members is essential. A knowledgeable lawyer can explain your options, protect your rights, and help you negotiate practical, compassionate solutions that ensure that your companion remains safe, loved, and well cared for even as your family changes.