Pets & Divorce
Tennessee, along with the majority of states recognizes pets as “property” during a divorce action. Since pets are distinguished as property in Tennessee, they are often divided among a parties’ other property items, such as furniture and vehicles. Distinguishing a pet as merely “property” can be disheartening to animals-lovers around the state. However, there is hope that this could change in the future, as there are a few states that are beginning to take a pet’s well-being into consideration when determining which party gets custody of a pet in a divorce action, and in 2023, a Tennessee bill was proposed that authorized a court in a divorce proceeding to provide for the ownership of pets and companion animals owned by the parties, taking into consideration the well-being of the animal.[1] The proposed bill did not pass; however, the bill shows that senators and representatives are beginning to consider a pet’s overall well-being during and after divorce.
Among the states that consider a pet’s well-being during divorce action are Alaska, California, Illinois, Maine, New Hampshire, New York, Rhode Island, and Washington DC, with Alaska being the first. In 2017, an Alaska law came into effective which amended divorce and marriage statutes to require consideration of an animal’s well-being when adjudicating the animal’s ownership or joint ownership.[2] Progressively, statutes of different states have become more specific and detailed when determining the custody of a per during a divorce proceeding.
For example, in L.B. v. C.C.B., a New York case, the Court considered the following factors when determining which party should have custody of the parties pets: (1) the involvement, or absence, of each party in the pet’s day-to-day life; (2) the availability and willingness of each party to care for the pet; (3) each party's involvement in health and veterinary care decisions of the pet; (4) the quality of each party's respective home environment; (5) the care and affection shown towards the companion animal; and (6) each party's fitness and caretaking abilities.[3] Additionally, in California, if the pet was acquired during the parties’ marriage, a court can consider various factors relating to the best interest of the pet, such as which party is the primary caregiver of the pet, which party has the financial ability to care for the pet, and the emotional attached of each party to the pet.[4]
Another state that takes the well-being and best interest of a pet into account is Rhode Island. Rhode Island uses two different tests depending on whether sole possession will be awarded to one spouse or joint possession of a pet will be awarded to both spouses. The factors a Court looks at when awarding sole possession are: (1) Which party owned the animal first or whether they purchased or acquired the animal together following marriage; (2) Which party assumed most of the responsibility for tending to the animal's needs including, but not limited to, feeding, walking, grooming, and veterinarian visits; (3) Which party spent more time on a regular basis with the animal; (4) What living arrangement is in the best interest of the animal in question; (5) Who presently wants sole possession or ownership and the proximity of the parties to one another to enable shared custody; and (6) Whether there are children involved in caring for the animal and the nature of their attachment to the animal, including consideration of which parent has custody of the children, and whether it is in the best interests of the children to keep the animal in their domicile for care and affection.[5] The factors a Court looks at when awarding joint possession are: (1) How long the animal will stay with each party to the animal possession determination; (2) How veterinary visits and costs shall be handled; (3) Who shall be responsible for basic needs of the animal including, but not limited to, food, toys, pet sitting, and daycare expenses while the animal is in each party's home; and (4) Any additional criteria the court determines relevant to the care and possession of the animal.[6]
Overall, most states that consider a pet’s well-being for custody purposes during divorce use similar factors, mainly based on the best interest of the pet. While Tennesseans wait for the state to adopt similar statutes and laws protecting their beloved pets during a divorce, there are a few ways to protect a pet’s best interests now. For example, parties of a divorce in Tennessee can use similar factors as other states to help guide negotiations during mediation to attempt to reach an agreement on the custody of their pet. If an agreement is reached, said agreement can later be embodied in an enforceable legal document, such as a consent order or a marital dissolution agreement.
[1] Tennessee HB467/SB568.
[2] AS § 25-24-160(a)(5).
[3] L.B. v. C.C.B, 77 Misc. 3d 429 (N.Y. 2022).
[4] Cal. Fam. Code 2605
[5] R.I. Gen. Laws Ann. §15-5-30
[6] Id.
