Family Matters

Pet Custody in Delaware Divorces

Many people consider their pets to be family members. Yet, up until recently, Delaware divorce law treated pets as personal property, no different than a lamp or a bookshelf. However, Delaware law now requires the Family Court to analyze your pet’s well-being when determining ownership. Delaware is one of the few states with provisions regarding companion pets as something more than inanimate personal property.

Delaware has come a long way in this regard. In 1995, the Delaware Family Court declined to sign a stipulation that included visitation provisions for the couple’s golden retriever, Zach. The court noted that “quite truthfully, the prospect of applying the seven [best interest factors, used to determine custody] to a Zach, a Tabitha, or even a fish called Wanda, for that matter, would be an impossible task.”Nuzzaci v. Nuzzaci, 1995 Del. Fam. Ct. LEXIS 30. The Court continued, stating, “the fact is that this Court is simply not going to get into the flora or fauna visitation business. The Court only has jurisdiction to award the dog to one spouse or the other.” Id. This was a harsh reality for many pet owners to face, as many people see their pets as members of their family rather than inanimate objects. Simply awarding a pet to one spouse or the other ignores the bond that animals share with their humans.

Thankfully, as of June 27, 2023, the Family Court is in the flora and fauna visitation business pursuant to 13 Del. C. § 1513(g). If you are worried about what will happen to your companion pet in your divorce, the first issue to consider is whether your pet is marital property. Your pet could be considered marital property if you adopted it during the marriage.

If your pet is marital property, Family Court has the ability to award ownership of and responsibility for the pet to one or both of the parties. The court may also determine who will be responsible for veterinary care and extraordinary costs. In making this determination, the court will consider each party’s ability to provide care for the animal, the bond the animal has with each party, and the time/effort that each party spent caring for the animal during the marriage. These factors favor the spouse who was the animal’s primary caregiver. However, in instances where both spouses share caretaking responsibilities and have a strong bond with the animal, the court may award both parties ownership of the pet. This could result in custodial and visitation provisions similar to child custody cases. Ultimately, the statute gives the court broad discretion and flexibility to determine what is best for your pet’s well-being.

The statute also affects future disposition of your companion pet if you and your spouse are awarded a shared interest. For example, neither party can give or sell the pet to a third party without the other spouse’s consent. Additionally, if one spouse passes away, the other spouse automatically gets sole ownership of the animal. Lastly, the statute allows you to petition the court for sole ownership of your pet upon a “substantial change of circumstances.”

If you’re facing divorce and have concerns about your pet, contact one of Obermayer’s Family Law attorneys to discuss your rights and options.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.