Who Gets the Dog in a Colorado Divorce?

Various factors can affect pet custody decisions

A recent Washington Post article noted that young Americans, particularly millennials, are less likely to be homeowners, car owners or parents than older generations, but they take the lead in one category: pet ownership. According to Wakefield Research, 75 percent of Americans in their thirties have a dog and 76 percent of millennials are more likely to splurge on their pets rather than themselves (among Baby Boomers, this figure drops to 50 percent). Millennials tend to invest more time and money on their animal companions; they also tend to gather a wealth of information before making decisions about pet care.

Researchers note that, with millennials (those born between 1980 and 2000) increasingly delaying marriage and parenthood, among those younger Americans pets are often taking the role previously occupied by children.

This surging pet ownership, which often begins long before marriage, means that family lawyers will be asked more and more often: “Who gets the dog in a divorce?”

There are many articles online about child custody in a divorce, but not nearly as much about how courts treat the family pets. For many families, these are known as their “fur babies,” especially where couples only have pets with no children at all. It may be natural for those families to think that dogs are treated somewhat like the children in a divorce — that the court would divide “custody” of the family cat or dog, or even that the one losing “primary custody” of the pets might get visitation rights.

But the short answer, when it comes to divorce in Colorado, is: only one of you gets the dog.

In this state, pets are treated as “qualified personal property.” That means that in some senses they are treated by law in a manner similar to the family furniture. In the divorce, they will be allocated to one party only, and the other will not have any rights over the “animal property” at all. This is especially true where courts are loath to create property allocations that require ongoing contact between divorced individuals. But that does not mean the court will not consider any factors relating to the animals — that is, why they are “qualified” property, rather than “unqualified” property (like the parties’ clothing and toiletries). The court will listen to testimony about why the animals would be better off with one over the other of the divorcing pet owners.

Some factors a court might consider in dividing this qualified personal property would be: Whether one party has a plan to put the animal down, while the other is willing to pay for expensive treatments to try to extend the animal’s life. Another factor might be which party took on the role of primary caretaker for the animals during the marriage. Another might be whether either party had abused or neglected the animals during the marriage. In sum, the court will consider factors that are relevant to the animals’ care, while still seeing the animals as property.

Because animals are considered personal property under Colorado law, if families want more flexibility in how the animals are handled, this is an area ripe for settlement rather than litigation. In a settlement, the parties can take their time to craft specific, tailored and flexible language to address the needs of their specific family pets. For instance, a family with small children who are very attached to the family pets might agree that the pets travel with the kids between homes parallel with their parenting time. Or the parties might agree that the pets stay in one home for the first few years and the other home for the next few years. They can even agree to an exchange schedule (much like for children), with the pets being exchanged weekly, monthly, or otherwise.

However, these are not the sort of arrangements a court will impose at trial. The court will simply award the “property” to one party or the other. Think about whether you and your ex will be able to get along well enough to agree to one of these alternative arrangements, or get ready to make your case as to why you should get the dog in the divorce.

Margot Freedman Alicks is a shareholder of Broxterman Alicks McFarlane PC (BAM), a Denver family law firm she co-founded with her Millennial partners, Heather Sanders Broxterman and Kyle Christina McFarlane, in 2015. She brings years of experience in diverse legal issues to the firm, including family, corporate, and fiduciary law. Contact her at mfa@bamfamlaw.com or at 303-331-6432.

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