Who Gets to Keep the Family Pet After a Divorce?

June 14, 2023

It’s no secret that, for many, pets are viewed as members of the family. When you consider the day-to-day relationship between pet and owner, this reality makes complete and total sense. To be sure, just as human family members live together, spend time together, and care for each other, so too do pets and their owners.

As the human birth rate has declined in recent years, it seems that the “fur baby” concept (i.e. the “humanization” of pets) has become more and more common. Quite literally, merchandise featuring phrases like “Dog Mom” or “Cat Dad” has proliferated, supporting this ever-growing aspect of many people’s identities.

Pets as Personal Property: Ohio Law

What happens to these “fur babies” when a marriage ends? Put another way, when a marriage terminates in a divorce or dissolution, do Ohio courts view and treat pets in the same way as human children, as the “fur baby” terminology would suggest? Or do Ohio courts view and treat pets in an asset-based manner?

The short answer: in Ohio, pets are, by law, viewed and treated as personal property. In this way, a court follows the same rules and classifications as would be used to handle any other type of asset when allocating pets in connection with a divorce or dissolution action.

Accordingly, the first critical question a court would likely evaluate in this context is when, how, and with what funds was the pet acquired. Why do the answers to these questions matter? Because these inquiries are pertinent to whether the pet is classified as separate property or marital property.

In Ohio, marital assets and debts are generally defined as those which have been accumulated and acquired by the parties during the marriage at issue. In contrast, Ohio statutes define separate (i.e. non-marital) assets and debts as those that fall into one of the following categories:

  • An inheritance of a spouse.
  • Any assets or debts acquired by a spouse before the date of marriage (i.e., premarital assets or debts).
  • Any passive income or appreciation on the separate property of a spouse.
  • Any assets or debts that were acquired by one spouse following a decree of legal separation.
  • Any assets or debts that are excluded pursuant to a prenuptial agreement.
  • Any compensation to a spouse for a personal injury, with noted exceptions.
  • Any gift that is demonstrated to have been made solely to one spouse during the marriage.

Dividing Marital and Separate Assets

In connection with the termination of a marriage, marital assets and debts are usually divided equitably (typically, equally) between the parties, whereas separate assets and debts are returned to the originating party.

Thus, in the context of a pet, if it was acquired before the marriage, gifted or inherited by one party, or purchased using premarital assets, it would likely be considered the separate property of that spouse. Ultimately, this means that, at the conclusion of the divorce or dissolution proceeding, the pet would be returned to the spouse with the separate property interest. It’s important to note that the spouse asserting the separate property interest would be required to affirmatively demonstrate the same, as mere conclusory assertions of a separate property interest, without more, are insufficient to successfully demonstrate a separate property interest.

Alternatively, if a pet was acquired during the marriage using marital funds, then the pet would be considered marital property. Ultimately, this means that the pet would be subject to “equitable division” between the parties in connection with a divorce or dissolution action. As a practical matter, this scenario would likely result in one spouse retaining the pet, while the other spouse would receive compensation for their marital interest in the pet.

Factors Considered by the Court

If the parties are unable to agree on which spouse will retain a marital pet at the conclusion of the divorce or dissolution action, then the presiding court will be tasked with performing a case-by-case analysis in order to determine the fair market value of the pet as well as which spouse will retain the animal.

Ohio courts consider the following factors when making this determination:

  • The residence where the pet has lived during the marriage, to the extent the same has been consistent.
  • Whether one party’s post-marriage living situation affords a more comfortable environment for the pet (for example, if one party resides in a home with expansive property for the animal, while the other resides in an apartment).
  • Which party holds legal title to the pet.
  • Which party is and has been primarily responsible for the day-to-day, emotional, and long-term care of the pet.
  • Which party is and has been primarily responsible for the expenses and financial care of the pet.
  • The relationship between each party and the pet.
  • The reason that or basis for which the pet was originally acquired by the parties.
  • If the pet is close with a minor child or children, with which spouse the minor child or children will primarily be living.

Although not exhaustive, the above list represents the most commonly examined (and persuasive) circumstances for many Ohio courts when faced with this particular scenario.

Agreements for Pet Sharing

What if both parties agree that they will share time with the pet following the termination of the marriage? While Ohio courts will not create a “custody” or “visitation” schedule for the pet and the former spouses, if the parties agree to a particular schedule by which they will share time with the pet at the conclusion of the case, then a court will typically adopt that agreement and incorporate it into any final Order of the court.

At KJK, we understand that pets are family too, and thus, may also be impacted by the termination of a marriage. For questions or guidance on this topic or any other divorce, dissolution or domestic relations issues, please contact Janet Stewart Scalley (JS@kjk.com; 216.736.7261), or another member of KJK Family Law by calling 216-696-8700.