Resolving financial and parenting issues can be challenging during a divorce, but a cherished pet can present additional difficulties. Animals are generally considered property under New York law, and until recently, family pets were subject to the same rules that govern division of assets in a divorce. However, recent changes to state law mean that courts must now weigh other factors in deciding which of the former spouses will be given possession of a pet.
A pet — known in New York law as a “companion animal” — is any cat, dog or other domesticated animal kept in or near the household of the owner or other person who cares for it. This does not include a farm animal that is raised for commercial or subsistence purposes, but it could include what some consider a farm animal if it is instead kept as a pet. It also does not include service animals, which are treated as separate property of the spouse they assist.
Courts used to consider a companion animal part of the spouses’ marital assets and ascribed a monetary value to them for purposes of property division. However, effective October 25, 2021, New York added a provision to its equitable distribution statute, requiring courts to award possession based on considering the best interest of the pet. Judges weigh the following factors among others in making this decision:
- Primary caregiver — Preference may be given to the spouse who feeds, exercises and provides veterinary care to the pet on a regular basis.
- Emotional bond — The judge can consider the emotional distress that a separation would cause to the spouse with the strongest attachment to the pet and to children of the marriage who may have formed such an attachment.
- Suitable living situation — The pet should be kept in an environment that is conducive to its health and well-being. For example, a tiny apartment may not be appropriate for a large dog, compared to a home with an ample back yard.
- Evidence of abuse or neglect — Any history of mistreatment of a pet by one spouse will ward against that spouse gaining possession.
Notably, despite growing use of the term “pet custody,” New York courts decide on pet possession as a matter of property distribution. Courts are not required to order schedules for sharing time with a pet. To work out an agreement for joint possession, you need to negotiate with your spouse. A prenuptial or postnuptial agreement can include such provisions.
At Goldberg Sager & Associates in Brooklyn, New York, our attorneys are experienced in all aspects of property division in divorce. Contact us online or call 718-514-9516 for a free initial consultation.