In Colorado, there are no pet-specific custody laws. If divorcing couples can’t agree on pet ownership, the judge is required to treat pets as property (rather than as children) and each pet will be kept by only one spouse. If the judge is left to decide the fate of your pup or goldfish, the spouse who doesn’t get to keep the pet will not be allowed to see the pet without permission from the owner spouse.
If one of you owned your beloved poodle before the marriage, Colorado law requires that Fido be treated as that person’s separate property. In that case, the judge cannot award Fido to the other party. However, if your kitty was acquired during the marriage, because there are no pet-specific custody laws, each judge has wide discretion regarding the evidence or testimony to consider when determining which spouse keeps Fluffy. The judge may consider what would be in Fluffy’s best interest, such as: which of you spent more time taking care Fluffy during the marriage, whose house will have the bigger yard for Fluffy to chase birds in after divorce, and the future flexibility or financial ability to care for Fluffy going forward.
On the bright side, although Colorado judges are limited to treating pets as property, that does not limit your ability to come to creative solutions in an out-of-court settlement. For instance, some couples agree on a pet visitation schedule, with fur babies transitioning between homes. This sort of arrangement will require a high level of cooperation between the parties. It is important to think carefully about how an agreement for shared custody of your pets will create a need for ongoing communication. Consider whether both spouses are willing and able to maintain a healthy relationship in the best interest of the pets once the divorce is final. If there is any history of domestic violence or coercive control in the relationship, a shared custody arrangement is likely not suitable, as the perpetrator may be tempted to use the pet to continue to inflict pain, fear, or control over the other party. It goes without saying that a pet should never be used to hurt or control a spouse or family members.
A shared pet custody plan will require that you come to some agreement regarding how vet expenses, doggie daycare, and grooming expenses are to be shared. Decision-making should also be considered. How will you and your former spouse decide whether to spend $5,000 putting your 15-year-old Shih Tzu through chemotherapy? For some pet parents, the cost-benefit analysis will control that decision. For others, that decision will be driven by emotion and possibly by a wish to prevent suffering. Either way, the probability of a disconnect on veterinary decisions is high and should be addressed in any agreement regarding shared custody.
Finally, a shared pet custody arrangement must be in writing and requires specific language regarding overnights, transitions, and what to do if one of you moves away. While you and your soon-to-be-former spouse may agree now that you will figure out the overnights on an ad hoc basis, you need to have specific language in place regarding these issues, just in case you are unable to agree in the future. Your agreement regarding your pets can be as flexible as you want. For example, the pet schedule could mirror the parenting schedule for the children of the marriage or mirror the schedule of a spouse that works “2-weeks on, 2-weeks off” with transitions taking place at the fire station at 5:00 p.m. every other Sunday.
Alternatively, if you aren’t able to agree on a shared custody arrangement, consider whether you might be able to breed your pet. One party could keep the breeding pet and the other gets the pick of the litter.
The most important thing to keep in mind is what would be in the best overall interest of your pets. If you and your spouse can work together in the best interest of your pets, both you, and your furry (or scaly) friends, will be the better for it.