For many couples, the hardest question in a divorce is not who keeps the house. It is who keeps the dog.
Pet disputes rarely come up at the first meeting with a lawyer. They tend to surface months into the case, once the couple has separated and someone realizes the dog, cat, or horse is staying with the other person. At New Mexico Legal Group, our attorneys have seen fights over a Great Dane mix, a shih tzu, horses, chickens, and even a bearded dragon. Managing attorney Maggie Brister walked through several of those cases on our podcast.
Here is how New Mexico law actually treats pets in a divorce, what judges do (and do not want to do) with these disputes, and how to protect the animal you love without derailing the rest of your case.
Key Takeaways
- New Mexico has no pet custody law. Under NMSA 77-1-1, dogs, cats, and domesticated birds are personal property and are divided like other assets.
- A pet you owned before the marriage is generally your separate property. A pet acquired during the marriage is generally community property, no matter whose name is on the paperwork.
- Judges cannot order shared custody of a pet and strongly prefer that couples decide. Some have set deadlines and ordered the animal rehomed when spouses could not agree.
- Couples can agree to a pet time-sharing plan in their settlement, but one spouse keeping the pet often works better. Bonded pets should usually stay together.
- Using a pet as leverage tends to backfire. It delays the case and can affect how a judge views you on attorney fees and child custody.
In New Mexico, Pets Are Property
New Mexico has no pet custody law. Under NMSA 77-1-1, a statute dating back to 1912, dogs, cats, and domesticated birds are legally personal property. Horses, cattle, and other livestock are treated as property too.
That means a judge dividing your marital estate looks at your dog the same basic way they look at the couch or the truck: as an asset to be awarded to one spouse or the other. There is no “best interests of the pet” standard in New Mexico, no visitation statute, and no custody hearing designed for animals.
Lawmakers have tried to change this. In 2017, House Bill 448 proposed letting judges award pets to either spouse regardless of whose name was on the vet records. It did not become law. Today’s spousal support and property statute contains no pet provision.
Some states, including California, now let judges consider an animal’s care and well-being in a divorce. New Mexico has not followed, so anything beyond a straight property award has to come from an agreement between you and your spouse.
How Judges Actually Handle Pet Disputes
If you are picturing a hearing where you explain why your dog loves you more, that is not how it usually goes. Family court judges in New Mexico would much rather the two of you decide.
Part of the reason is the law: a judge can only award the animal as property. Part of it is that judges do not want to be the one who takes a beloved pet away from someone. And part of it is time. Family court dockets are crowded, and a hearing about a dog competes with cases involving children. As Maggie explained, judges see a pet hearing as time taken away from cases about children who are homeless, hungry, or being hurt.
When spouses cannot agree, some judges have run out of patience entirely:
“I have heard sad stories where the court judges have told the parties if they have a deadline to figure out who’s taking the dog or the animal and if they don’t, that the animal has to be placed for adoption for someone else.”
The practical lesson: the best outcome for you and your pet almost always comes from a negotiated agreement, through your attorneys or in mediation, rather than a ruling.
Separate Pet or Community Pet?
Because pets are property, New Mexico’s community property rules decide whose pet it is in the first place.
- A pet you owned before the marriage is generally your separate property and goes with you.
- A pet acquired during the marriage is generally community property, no matter whose name is on the adoption papers, microchip, or vet bills. It has to be awarded to one of you as part of the overall property division.
In practice, Maggie says the rule rarely settles the emotions. She often hears from the spouse who did not bring the dog into the marriage that the dog still loves them more.
If you are planning to marry and already have a pet you would never give up, a prenuptial agreement can say so in writing. A postnuptial agreement can do the same for pets you get after the wedding.
Pet Time-Sharing Plans: When They Work
A judge cannot order shared custody of a dog. But you and your spouse can agree to it, and that agreement can become part of your divorce settlement.
Maggie’s 50-year-marriage case is a good example. The divorce stalled over two dogs, a Great Dane mix and a small shih tzu, until the couple agreed on a schedule:
“We ended up doing a time sharing plan with the dogs. And once he agreed to that, it was done. We were done with the case.”
That said, shared time is usually a last resort, not a first choice. It keeps two people tied together after the divorce, and every handoff is a chance for a new fight over the leash, the food, or who paid for the vet. Maggie generally prefers that one spouse keep the pets.
If you do agree to share a pet, put the details in writing. A workable plan usually covers:
- the schedule and where exchanges happen,
- who pays for food, grooming, routine vet care, and emergencies,
- who makes medical decisions, including end-of-life care,
- travel, boarding, and what happens if one person moves,
- what happens if one person can no longer care for the animal, and
- whether the arrangement ends at some point, with one person keeping the pet
Keep bonded pets together
Splitting two pets, one for each spouse, can seem like the fair answer. It often is not. Dogs that have bonded with each other can take the separation very hard.
Once the anger settles, Maggie finds many clients come around and let the other spouse keep both animals rather than separate them.
When a Pet Becomes Leverage
Sometimes the fight is not really about the animal. A spouse may suddenly demand the dog to rattle you, to win concessions elsewhere, or simply to hang on to the last piece of the relationship. In Maggie’s 50-year case, the husband who insisted his wife could not care for the dogs was, by her account, really struggling to accept that the marriage was ending.
Maggie will not trade pets like bargaining chips:
“I’ve seen attorneys try to bargain animals. And I won’t do it because I morally just think that’s wrong.”
In one of her cases, a husband kept his wife’s registered service dog for six months and then tried to trade it at mediation. The mediator shut that down, and he gave the dog back.
If the goal is to punish the other spouse, it rarely works. In Maggie’s experience, it delays the case and frustrates the attorneys, the mediator, and the judge.
It can also hurt the parts of your case that matter most. Judges notice who is driving conflict, and that impression carries over to decisions about attorney fees and parenting. If you have children, Maggie warns that a string of pet motions can follow you into the custody decision:
“The court goes, well, there’s about five motions here about the dogs. I can only imagine how you are at home. That could risk you legal custody.”
This is one reason we steer clients away from the “pit bull” approach to divorce, and why it matters what judges look for in child custody cases.
How to Protect Your Pet in a New Mexico Divorce
Because most pet outcomes are negotiated, your goal is to put yourself in the strongest position to reach a good agreement.
- Raise the pet early. Tell your attorney at the first meeting if a pet matters to you, so it is part of the plan from day one instead of a surprise months in.
- Gather your records. Adoption or purchase papers, vet records, microchip registration, and receipts help show whether the pet is separate or community property and who has been caring for it.
- Show who does the caregiving. Who feeds, walks, trains, and takes the animal to the vet is persuasive in negotiation, even though it is not a legal test.
- Think about where the pet will live. A yard, a pet-friendly lease, your work schedule, and where the children will spend most of their time all matter to a realistic plan.
- Do not hide, rehome, or sell the pet. A pet acquired during the marriage is community property, and New Mexico’s temporary domestic order generally restricts disposing of community property while the case is pending. Read what happens at a temporary orders hearing.
- Stay calm when your spouse makes demands. A sudden claim on the dog is often about leverage or emotion. Let your attorney respond, and keep the pet out of the larger fight.
- Get it in writing. Whatever you agree on, from one spouse keeping the pet to a detailed time-sharing plan, make sure it is in your signed settlement.
If you are early in the process, our guide to dividing personal property in a divorce explains how to document what is in your home, pets included.
Frequently Asked Questions
Are pets considered property in a New Mexico divorce?
Yes. Under NMSA 77-1-1, dogs, cats, and domesticated birds are personal property, and livestock is treated as property too. A court divides pets as part of the property division, not through a custody process.
Can a judge order shared custody of a dog in New Mexico?
No. A judge can award the pet to one spouse as property. Shared time with a pet only happens when both spouses agree and put the arrangement in their settlement.
Who gets the dog if we got it during the marriage?
A pet acquired during the marriage is generally community property, regardless of whose name is on the paperwork. The spouses can agree on who keeps it, or the court will award it to one of them as part of dividing the community estate.
Can I keep the dog I had before we got married?
Generally, yes. A pet you owned before the marriage is usually your separate property.
Do people fight over cats, too?
Rarely. Maggie says she has never had a case where the cat was the problem. Dogs, horses, and even reptiles are a different story.
Should I include our pets in a prenup?
If a pet matters to you, a prenuptial or postnuptial agreement is the simplest way to decide in advance who keeps it.
Talk to a New Mexico Divorce Attorney
A pet dispute can stall an otherwise simple divorce. Our attorneys help you protect what matters to you, including the animals you love, without letting one issue take over your case. Call 505.843.7303 or request a free case evaluation with our Albuquerque or Las Cruces office.