Those who believe pets are family won’t be pleased to know pets are treated as property in a California Legal Separation or divorce, but they are protected domestic violence.
If a judge is asked to decide who gets the pet in divorce, the judge must determine whether it is separate or community property. If a pet was acquired during marriage, it is presumed to be community property asset. If acquired during marriage with separate property funds, unless otherwise agreed in writing, the pet belongs to the spouse who’s funds were used to purchase the pet. If the pet was acquired before marriage by one spouse, he/she is separate property of the acquiring spouse.
What happens if you and your spouse acquired the pet together before marriage and free of charge? That’s a more difficult question to answer and turns on intent at the time of acquisition. In other words, did a couple intend on co-owning the pet or that it would belong solely to one or the other?
Regardless of who owns the pet post divorce, because California doesn’t have any pet custody laws, a post divorce couple must voluntarily agree to any visitation arrangements.
But in cases of domestic violence, California Family Code section 6320 authorizes a Court to grant “exclusive care of any animal to a party, and may further restrain the other party from taking, attacking or harming the animal.”
This leads to an interesting conundrum. What happens if the abusive spouse is the lawful owner of the pet protected by California Family Code section 6320? It may be necessary to pursue other civil or criminal remedies to keep the pet out of the abusers hands indefinitely.
Ideally, separating and divorcing pet parents will negotiate timeshare and expense agreements without court involvement.