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What Happens to Pets when the People Divorce?


The question of pets is one of the most frustrating issues to deal with in a Colorado divorce because no matter how much their families value pets and treat them as part of the family, Colorado law does not really treat them as anything other than property. There are no Colorado statutes or other laws providing guidance to judges about what to do with pets when their people divorce. There are no provisions for pet custody and no easy answers when it comes to deciding who will get to keep a pet, be responsible for taking care of it, or being financially responsible for it. That means that families struggling to decide what to do with their pet after a divorce do not have much predictability as far as what a judge may do if they leave the issue up to the judicial system.

In some cases, a judge may be willing to listen to arguments about what is really best for the pet, including who has the space and time to care for the animal, who the animal is most attached to, etc. In some cases, the judge may be swayed by whether there are children in the case and, if so, how attached the children are to the pet. Some judges will consider pet issues as part of the best-interests-of-the-child analysis they have to make when deciding parenting time, ultimately allowing the pet to travel with the children or giving the pet to the parent with the majority of the parenting time, for example. Colorado law does not require that judges do either of those things, however, so many judges will simply treat the pets as property, allocating their ultimate ownership using the same tools they would to decide who will keep a particular vehicle or item of personal property.

In one unpublished decision (Pennington v. Barry, 20CA1478, 10/28/21), the Colorado Court of Appeals considered what to do in a case in which two people lived together and co-owned a dog. When the parties separated, one of them obtained a protection order against the other, which included language regarding which of them had the right to possess the dog. The parties then tried civil remedies, including replevin (a legal action that allows a party to recover personal property that has been seized by someone else) and a partition action (which can be used to force the sale of a disputed item of property). Neither of those tools was really designed to be used to determine ownership of a pet, so the results will likely not be based on any kind of analysis regarding what would actually be best for the animal. Basically, civil remedies will most likely focus on which party has legal title to the animal, who purchased it, who has contributed the most to its care and maintenance, etc.

Because Colorado law has such little guidance regarding how to resolve a dispute over ownership of a pet fairly and humanely, parties may want to consider submitting that particular question to binding arbitration instead of a judge. In an arbitration setting, the parties could stipulate as part of the process to what standard the arbitrator will use to decide what should happen to the pet, including asking that the arbitrator consider the animals attachment to each person, the home environments, etc. It is also worth remembering that, although a judge does not have any obligation to apply the standards the parties believe would be most appropriate for deciding what should happen with the pet, if the parties can agree on language regarding what should happen to the pet, the court can enforce that language. In other words, if people want to draft a pet-sharing provision after they separate, or if they want to obligate one another to contribute to the cost of caring for a pet, the court can adopt and help enforce those agreements.

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