Pet custody can become as contentious in a divorce as the custody of children. That’s why in some states, like Alaska, California and Illinois, courts consider the pet’s best interests, similar to how they resolve child custody issues. In most states, however, pets are considered property, which means a divorce judge may well decide who gets the family dog the same way he or she decides who gets the house, the car, the living room sofa, the wedding china or any other asset that’s part of the marital estate.
But a dog or cat has physical and emotional needs that a pool table or patio set doesn’t have, so you may not want to risk your pet being equitably distributed like an inanimate object. To address this concern, “petnup” agreements between partners or spouses that lay out what happens if the couple breaks up have become increasingly popular.
The key consideration in a petnup is custody. Joint custody seems like it would make sense if both spouses are equally close to the pet. But many pet experts say this isn’t a great idea since the instability of shuttling between homes can cause behavioral issues in animals. Instead, primary custody with one spouse with visitation rights for the other might be a better option.
Another consideration in creating a petnup is whether you have kids and if they’re attached to the pet. If so, it may be in the kids’ own best interest for the pet to reside in the place of primary physical custody.
Either way, you shouldn’t draft a petnup on your own. If the pet truly matters, you should make sure the agreement is written in a way that will carry out your wishes and hold up in court. A family law attorney can help you with that.
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