Divorces are a universally painful process that affects everyone involved. About 50% of all marriages result in a divorce.[i] While some cases achieve amicable resolutions between spouses, others result in lengthy battles over the custody of minor children and assets. Yet, there has been an increase in cases where couples—particularly those that are childless—view their pets as family members. Although pet ownership has rapidly increased nationwide, pets fall into a legally gray area when spouses divorce. Therefore, states have enacted pet custody laws to consider the animal’s needs.[ii]

Several states have changed the pet custody law standards from a traditional “property” analysis to a modern “well-being” approach. For example, in 2017, Alaska became the first state to codify into law that judges in divorce cases must consider the animal’s welfare while explicitly allowing joint ownership between the parties.[iii] Representative Liz Vasquez, the bill’s co-sponsor, believed that “[p]ets are truly members of our families. We care for them as more than just property. As such, the courts should grant them more consideration. [It is] only natural.”[iv]

Alaska’s pet custody law is groundbreaking as it acknowledges that a family pet is not equivalent to a piece of furniture. Science has demonstrated that some animals have awareness, emotions, and intuitiveness.[v] Due to their invaluable emotional support, in 2014, family law attorneys saw a 27% increase in pet custody cases compared to the previous five years, and the numbers continue to rise.[vi] The parties involved often want decisions on custody, visitation, or monetary support for their pet. However, every statute before 2017 only addressed children, not animals.[vii]Thankfully, as of October 2021, Illinois, California, New Hampshire, Maine, and New York have passed similar pet custody laws to Alaska.[viii] As of 2022, Rhode Island’s House Bill 7087 is pending legislation.[ix]

The evolving social importance of pets has led six states to adopt the “best interest” standard, similar to the standard used in child custody cases.[x] Although the standard considers who purchased the pet and assumed the financial responsibility throughout the marriage, factors like the best living arrangement for the pet and the nature of attachment—especially if children are involved—also play a significant role.[xi] In awarding joint custody, the court considers who will be responsible for everyday needs such as food, how long the pet will live with each party, and the financial division of the veterinary bills if any.[xii] Overall, these pet custody laws consider the pet’s future and put its needs over the owners’ desires.

However, Florida has yet to follow suit. In Bennett v. Bennett, the divorcing spouses could not agree on who should keep their dog, Roddy.[xiii] To appease both parties, the trial court awarded custody to the husband and visitation rights to the wife. Unhappy with this decision, the husband appealed the case, and the First District Court of Appeal of Florida reversed the judgment. The Court recognized that other states gave pets special status within dissolution proceedings but felt it was unwise to extend such protections to pets in Florida.[xiv] The Court believed their decision was rational due to their overwhelming caseload on custody and visitation arrangements involving children. In addition, the Court highlighted, “[w]e cannot undertake the same responsibility as to animals.”[xv] As a result, nearly thirty years later, pets are still considered personal property under Florida law.[xvi]

In a Florida divorce, personal property is subject to equitable distribution, the legal process of identifying and classifying assets and liabilities into marital and non-marital property.[xvii] The pet is classified as non-marital property if one of the spouses obtained it before the marriage; the court will grant ownership to the spouse with proven records.[xviii]On the other hand, marital property generally includes all assets acquired through efforts during the marriage, including interspousal gifts. If the spouses adopted or bought the pet during their marriage and conflict arises during the divorce, the court examines which party spent the most money and time on the pet to determine the “rightful” owner.[xix] Florida courts do not consider the emotional value of pets and will not grant visitation or shared custody arrangements. To make matters worse, Chapter 61 of the Florida Statutes does not address pets as property in divorce cases, leaving it entirely at the court’s discretion.[xx]

To surpass the lack of pet custody laws in Florida, many family attorneys have promoted mediation or negotiation as the best solution to reach an agreement about pets.[xxi] However, this divorce agreement can only list one party as the exclusive owner of the pet, despite any separate agreements on shared custody.[xxii] Thus, most parties prefer to take their chances in litigation in hopes of a favorable decision. Yet, this is a significant risk as some judges are not fond of pets, lack an empathetic understanding of the situation, or are unwilling to hear the case because they need more guidance to rule accordingly. Given pets’ unique roles in their owners’ lives, judges should have the legal authority to address their well-being and give closure to families moving forward in separate homes.

Society’s view on pets has drastically changed in the past centuries. For instance, in the 1800s, dogs were solely bred to provide financial gains for their owners.[xxiii] Similarly, pig ownership was strictly for livestock purposes.[xxiv]Both animals were seen and treated as personal property. Today, 80% of owners view pets—including non-traditional ones like pigs—as family members and spend thousands of dollars on their healthcare and accessories.[xxv] In addition, pets provide companionship and mental benefits to their owners. Divorces already take an emotional toll on the parties involved, and losing a furry family member is an additional insult to injury. Six states have successfully adopted a “best interest” standard for pets in divorce cases. Accordingly, Florida should consider implementing its own pet custody law to assist pet owners during a difficult time instead of enforcing archaic precedent.

[i] See 48 Divorce Statistics in the U.S. Including Divorce Rate, Race, & Marriage Length, Divorce (Jan. 3, 2023), https://divorce.com/blog/divorce-statistics/.

[ii] See Sharon L. Klein, May 2022 Monthly Tip – Custody Battles can be Fierce… Over the Pets: Protect Pets in Divorce, Willmington Tr., https://www.wilmingtontrust.com/library/article/may-2022-monthly-tip-custody-battles-can-be-fierceover-the-pets-protect-pets-in-divorce (last visited Feb. 13, 2023).

[iii] See Nicole Pallotta, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, ALDF (Jan. 20, 2017), https://aldf.org/article/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases/.

[iv] Id.

[v] See Melissa Chan, Pets Are Part of Our Families. Now They’re Part of Our Divorces, Too, Time (Jan. 22, 2020), https://time.com/5763775/pet-custody-divorce-laws-dogs/.

[vi] See Alaska Paving the Way for Pet Custody Laws, Legal Lookout, https://legal-lookout.com/family-law/pet-custody-laws/ (last visited Feb. 13, 2023).

[vii] See Karin Brulliard, Pets No Longer Just Property in Alaskan Divorce Cases, Chi. Trib., https://digitaledition.chicagotribune.com/tribune/article_popover.aspx?guid=c5c4ef6e-1ac8-49e5-8b8c-720c12bb9b6c (last visited Feb. 13, 2023).

[viii] See Pallotta, supra note iii.

[ix] See McIntyre Tate LLP, Lawmakers Consider Law for Pet Custody in Rhode Island, McIntrye Tate (June 2, 2022), https://www.mcintyretate.com/blog/2022/june/lawmakers-consider-law-for-pet-custody-in-rhode-/.

[x] See Klein, supra note ii.

[xi] See McIntyre Tate LLP, supra note ix.

[xii] Id.

[xiii] See Bennett v. Bennett, 655 So. 2d 109, 110 (Fla. 1st DCA 1995).

[xiv] Id.

[xv] Id. at 111.

[xvi] See Who Gets the Pet in a Florida Divorce?, Russell H L. (Nov. 12, 2020) [hereinafter Russell], https://www.russellhlaw.com/blog/2020/november/who-gets-the-pet-in-a-florida-divorce-/.

[xvii] Fla. Stat. § 61.075 (2022).

[xviii] See Russell, supra note xvi.

[xix] Id.

[xx] § 61.

[xxi] See Russell, supra note xvi.

[xxii] See Who Gets the Dog? Understanding Pet Custody in Florida, Farber L., https://farberlawpa.com/who-gets-the-dog-understanding-pet-custody-in-florida/ (last visited Feb. 13, 2023).

[xxiii] See Chan, supra note v.

[xxiv] See Nicole Pallotta, Friend or Food? Companion Pigs Challenge Legal Distinctions, ALDF (May 20, 2020), https://aldf.org/article/friend-or-food-companion-pigs-challenge-legal-distinctions/.

[xxv] See Chan, supra note v.