Pet Custody in Indiana Divorces

Pet Custody in Indiana Divorces

Which party gets the Furry Child?

“Which one of us gets the dog?” A question that many parties in a divorce ask their lawyers when going through the process of dissolving their marriage. The fact is that divorce is one of the toughest things that a person can go through, and the loss of a beloved pet can put even further strain on a person, so understanding how to keep a pet may be one of most important things to a person.

Many people now a days, consider their pets to be their children and as such there are “custody” issues that must be addressed in determining where the marital pets will go, so let us jump right in. While no states have specifically enacted “pet custody laws”, many have anti-cruelty laws that provide protection for the animals so that they are not able to be harmed or neglected. There have been cases that have set precedent in other states that have dealt with the best interest of the animal involved, visitation of the animals, and continued financial support for the pet. Unfortunately, Indiana’s laws have not yet evolved to the point where a marital pet is viewed as anything other than a piece of personal property.

Specifically, in Indiana the system of marital distribution is based on a “hotch-pot” theory where everything, inclusive of assets/debts, personal and real property, are put into one pot and there is a “just and reasonable split” (rebuttably presumed to be a 50/50 split) between the parties. Based on this, Indiana generally views the marital pet to be personal property and as such will divide the pet as if it were tantamount to another item of personal property, i.e. a table or television. This does not mean that the Judge all of the sudden becomes a King Solomon-esque figure and demands that the “fur-baby be split”, but instead will use the fair market value of the animal as it pertains to the potential dollar amount that the animal is worth. While the animal may be “priceless” to you or your soon to be ex-spouse, the sentimental value of the pet is not something that the Court will consider, and in that vein will not usually hear arguments as to the visitation or custody of the pet. As a result of the laws not catching up to society’s emotional attachment to animals and the Court’s usual unwillingness to hear argument on the issue, it will be in the parties’ best interest to come to some type of agreement for where the animal should go outside of the Court proceedings.

In the event that an agreement is unable to be reached by the parties, and the Court is willing to hear argument on the issue, the argument needs to be based on property terms. The party who contends that they are the “rightful” owner of the pet would be well-served to come prepared with the following items:

  • Proof that he/she has been solely responsible for the care of the animal, such as receipts for the healthcare costs for the animal;
  • Proof that he/she has been the person responsible for the day to day care of the animal (i.e., food, registration, hiring the dog-walker, doggy day care costs); and
  • Costs of acquisition of the animal (i.e., adoption or acquisition costs).

(NOTE: the above list is not an exhaustive list, and there may be other ways of proving that a party has been the majority care-taker for the pet.)

If a party is able to show that they have been more involved in the care and control of the pet, just as a party was more involved with the care and control of any other piece of marital property, it MAY help a party in the Court’s determination of whom is ultimately awarded the marital pet in the final dissolution Order.

As earlier stated, the laws in Indiana have not evolved to the point of considering “pet custody” and as such the pet will be treated as property, so with that being said, it is always in the parties’ best interest to try and resolve any issues related to the care and control of the marital pet outside of the Court proceedings, either via contract or agreement.

If you have further questions about what happens to your furry household member in the event of a divorce and you are in need of assistance, please do not hesitate to contact the experienced attorneys at Banks & Brower, LLC for a free consultation at (317) 870-0019 or email us at info@banksbrower.com.