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Who keeps the pet in a contested divorce?

If you are a devoted pet owner, you will probably go to great lengths to keep your dog or cat with you in the event of a divorce. But what happens when you and your soon-to-be ex-spouse can't reach an agreement about who will keep the pet when the humans split?

It's a bit of a legal sticky wicket. While the rules regarding pet custody continue to evolve, in Tennessee, as well as in most states, pets are considered to be part of the marital property and are not subject to custody determinations by the courts.

Couples fight over pet custody

When both spouses battle over who gets the family pet in a divorce settlement, this issue could stymie the legal process for months until the spouses reach accord or the matter is adjudicated. A particularly frustrating aspect can occur when one party simply uses the other's love of the pet to force them to make concessions in other areas of the divorce.

What the courts say

A few states have begun taking into consideration the pet's well-being during and after a divorce, but most are like Tennessee and view a dog, cat or other animal as mere property. As such, the courts can attempt to establish ownership of a companion animal. For instance, a pet you had prior to being married would be considered to be your separate property and not subject to asset division in a divorce.

But ownership is not always that clear if you bought or acquired the pet during the marriage. In some cases, there will be a paper trail, such as when owners register purebred dogs with the American Kennel Club (AKC). There is also likely to be a record of one spouse adopting a dog from the local shelter.

In cases where there is no clear paper trail of ownership, a court might rely on records from a veterinarian, groomer or obedience trainer. A judge might even question the spouses about which one takes the dog for its shots and baths and who exercises it at the dog park. But that is not a given in a Tennessee divorce.

A prenup can avoid this dilemma

Just as it's possible to protect your ownership rights to certain property in a divorce by signing a prenuptial agreement, it's also a good way to protect your rights to your pet in the event of a divorce.

You might not think such a matter will ever become an issue for you and your spouse. But divorce can make people behave in ways in which they otherwise would never consider acting. Protecting your right to retain your pet after a split can provide you with peace of mind.

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