In the US, pets are increasingly being written into prenups

Many couples are now writing pets into their prenups. Image: Shutterstock

Who keeps the dog or cat? It's a question that many couples have to ask themselves when they separate. To prevent custody battles becoming a bone of contention in the event of divorce, some “pet parents” choose to sign a pet prenup before they tie the knot.

In the United States, marriage contracts, or prenups, are commonplace. No one raises an eyebrow when future spouses sign a document in which they decide how their assets will be divided in the event of divorce or death. 

Recently, however, lawyers have been surprised to find that a large number of couples are writing their pets into their marriage contracts. Meg McKinney, a family law attorney in Maryland, estimates that around a quarter of prenuptial agreements now include a pet clause, while her New York counterpart Yonatan Levoritz puts the figure closer to 20%, reports Business Insider. 

So why are pet owners writing their furry friends into their prenups? First and foremost, because of their attachment to these animals. Over 50% of American “pet parents” see their little companion as a member of their family, just like any other close relative, according to the Pew Research Center. As a result, they worry about their pet's well-being if they were to separate from their spouse.

This is because, in most US states, dogs, cats and other pets are considered to be movable property, not sentient living beings. In the event of divorce, the ex-spouse who bought or adopted the animal can claim ownership and, by extension, sole custody. If the animal was acquired by the couple during the marriage, it legally belongs to both of them. They must therefore agree on the terms of custody, or leave it to a judge to decide for them.

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Protecting pets when relationships break down

A situation that can lead to legal imbroglios. Actors Shantel VanSanten and Victor Webster went to court to determine the custody arrangements for their dog, Nova, following their divorce. It was decided that Webster would have custody of the dog, but that VanSanten can temporarily take the animal for up to three weeks at a time, reports Page Six. Moreover, if VanSanten does not return Nova to her ex-husband on time, she will have to pay him $10,000 for each additional day of custody.

This court decision may seem extreme, but it shows just how important it is for couples to think about the future of their pet, should their relationship break down. Yet few do. Fifty-six percent of owners polled in a survey by pet-sitting and dog-walking network Rover say they have never discussed with their partner who their pet would live with in the event of separation or divorce. 

This is regrettable for Philip Tedeschi, a specialist in human-animal relations. "Unfortunately, because pets are considered ‘property’ in the eyes of the law, they must be protected as such. I’m a strong proponent of a written agreement like this—not only does it put the couple in a position of clarity, but it protects the animal in the event the human relationship comes to an end. We must control what we can in the situation, and in this case it is protecting our pets from conflict or disturbance, from sudden change of routine or abrupt loss of familiar settings. Pets are a huge part of developing committed relationships and teach us so much about ourselves and our partners. A pet care agreement serves as a commitment to co-parenting in healthy ways, ultimately elevating animal well-being in the long run," he told Rover.  

Countries such as Spain and Portugal have decided to legislate on these issues, so that animal welfare is taken into account to a greater extent in divorce proceedings, as is the case with children.