Pet Custody and Divorce in Colorado: What Happens to your Pets?

Allison Sutton
By: Allison Sutton
PublishedFeb 16, 2023
3 minute read

Have you ever referred to your dog or cat as your ”child”? You’re not alone–80 percent of owners view their pets as family members, according to a survey by the American Veterinary Medical Association. If you are going through a divorce, the thought of being separated from your pets can add another layer of heartbreak to an already emotionally fraught situation. Read this article to learn more about how Colorado law treats pet custody and divorce.

Bottom Line

Divorce courts have historically treated pets as personal property without regard to the best interests of the animals. You and your former spouse are strongly encouraged to reach an agreement on pet ownership so the matter does not reach the courtroom.

The Law Says Animals are Property

“Whatever one may think of treating our dogs like people—whether it is called ‘humanification,’ ‘personhood,’ or some other means of endowing dogs with humanlike qualities—it is impossible to deny the place they have in our hearts, minds and imaginations.” Travis v. Murray, 2013 NY Slip Op 23405, ¶ 4, 42 Misc. 3d 447, 451, 977 N.Y.S.2d 621, 625 (Sup. Ct.)

There are no influential statutes or case law on pet custody. However, the issue of pet custody “can become as important as children in a divorce settlement” and can get just as nasty. source: SEPARATION, CUSTODY, AND ESTATE PLANNING ISSUES RELATING TO COMPANION ANIMALS, 74 U. Colo. L. Rev. 181, 221

Regardless of how much you cherish your pet, the current legal framework treats animals as just another form of personal property. 

In divorce cases, animals are typically assigned a monetary value based on their fair market price. This means that, unlike in child custody cases, Colorado family courts are not required to consider the best interests of the animal. Legally speaking, pets are more akin to a Cadillac than a child.

If you owned your pet prior to the marriage, you could make a claim that the animal should be considered separate property and not subject to division in your divorce proceedings.

Absent an agreement between you and your spouse, or a separate property claim, the judge will likely determine the pet’s ownership using the same criteria he or she uses to decide property ownership.

What the Judge Considers

If the judge is willing to consider the best interests of everyone, including your pet, here are some factors he or she may consider:

  • the sentimental value your pet holds for you and your spouse
  • whether you or your spouse has assumed primary care of the pet
  • who spent the most time with the pet
  • whether the pet was a gift to one party (this would be a separate property claim)
  • which spouse’s expected post-divorce lifestyle is better for the pet? For example, if one party travels for business, he/she may not be the best caretaker.

Additionally, if there are children involved, the spouse with primary custody likely will also get the pets. Much like courts have held that siblings should not be separated from one another, this will “leave most of the pack intact.” source: University of Colorado Law Review

Sometimes the spouses agree the pets will be exchanged along with the children. A judge could potentially order this as well.

Add Your Pet to Your Prenup

As any seasoned family law attorney will tell you, anything you care about, put it in a prenup.

You can spell out in your prenuptial agreement exactly how your pets will be cared for in the event of a divorce. If you are not yet married, this is something you should strongly consider:

At this point, given the lack of statutory and consistent judicial support for animal custody arrangements, it is essential for parties to enter into private contracts in order to protect the interests people have in companion animals. Whether this contract is made prior to or at the time of the separation, people who truly care about the best interests of an animal will need to agree on arrangements that provide the best environment possible for the animal. Source: SEPARATION, CUSTODY, AND ESTATE PLANNING ISSUES RELATING TO COMPANION ANIMALS, 74 U. Colo. L. Rev. 181, 230

More Like People

In recent years, the pendulum of U.S. case law has swung more toward treating pets like children rather than property. Courts are also moving toward awarding pets to the spouse who cared for them the most.

In 2013, the New York Supreme Court sent a custody case back to the trial court for a full one-day hearing to determine who would get sole custody of Joey, a 2½-year-old miniature dachshund.

One spouse initially sought “sole residential custody” of Joey, claiming he was her property because she bought him with her own money prior to the marriage. However, the New York’s highest court instructed the trial court to determine custody based on what was best for all concerned, including Joey:

“Although Joey the miniature dachshund is not a human being and cannot be treated as such, he is decidedly more than a piece of property, marital or otherwise.” Travis v. Murray, 2013 NY Slip Op 23405, ¶ 7, 42 Misc. 3d 447, 456, 977 N.Y.S.2d 621, 628 (Sup. Ct.)

The hearing gave each spouse “the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other.” Travis v. Murray, 2013 NY Slip Op 23405, ¶ 10, 42 Misc. 3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct.)

Let Us Help You and Your Pet Stay Together After Divorce

The R&H Family Law Team understands the unbreakable bond that can form between a human and their pet. We will handle your pet custody case with the same compassion and professionalism we would a child custody matter. Call 303-688-0944 today to begin your case assessment.

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