After A Breakup Who Gets The Dog?

When Jake Gyllenhaal and Kirsten Dunst were young Hollywood’s "It Couple," gossip columns and tabloids buzzed with "They’re just like us!" tidbits and photos of the pair walking their adopted German shepherd, Atticus. Now, three years after their breakup, Gyllenhaal is reportedly planning a wedding to Reese Witherspoon — with Atticus as the ring bearer.

It’s one thing when your ex has moved on to someone else, but how much deeper does it cut when his new woman is photographed walking the dog you adopted together?  

As Americans increasingly marry and have children later in life, the numbers of couples with pets have risen dramatically, and with those shared pets comes the question: what happens when you break up? The American Academy of Matrimonial Lawyers reported that a quarter of its members had seen an increase in the number of divorce cases involving pets — the majority of them dogs, but also horses, birds, and boa constrictors — such as the 2000 case of a California couple that spent more than $100,000 fighting over a pointer-greyhound cross named Gigi. "I had a litigation case involving a very high-end parrot," says James Hennenhoefer, president of the AAML, "and the allegation was that the man smoked pot in the presence of the parrot when it would visit him and the parrot would come back under the influence. So there was a discussion of whether it was in the parrot’s best interest to visit the pot-smoking dad."

Many couples don’t have formal agreements about who gets the pets, but that discussion can be as fraught as any that led to the breakup. When Ryan Devlin and his wife separated after five years of marriage, "She cried like I’ve never seen anyone cry in my life when I said ‘I’m taking the cats,’" he says. "So I decided it wasn’t worth fighting over. But that sucked. I didn’t want to give them up. I love them."  

Most state laws still classify pets a property, much like the TV or your vintage T-shirt collection, but with one key difference: If you and your ex can’t decide on who gets the pet, you can’t liquidate it like you would a car and split the proceeds. "There’s a lot of informal mediation and it’s the rare case that goes to court," says David Favre, a professor at Michigan State University College of Law and editor in chief of animallaw.info, "but some people are so emotionally invested in their pets that there’s no compromise available in the custody issue."

Nadia Croes and her ex-boyfriend broke up last November after 10 years together, and their seven-year-old pit bull, Mia, was a central battleground in the split. "When we would fight toward the end, I would joke, ‘You can’t have the dog,’ like how other people might argue about a flatscreen," Nadia says. "He walked and fed her more than I did, because his hours were more conducive to taking care of her, but it was my decision to get a dog and she was always licensed in my name. She’s my baby."

Ryan and his ex-wife worked out a visitation system that allows him to see the two cats whenever he likes, but the split and subsequent move have affected them. "They’re littermates, and they used to be really close friends, but now Smacky fights with Bucky constantly and won’t let Bucky get near him," he says. "Smacky is not happy. He’s a child of divorce." 

And while couples may have the best of intentions regarding their behavior in the event of a split, reality can intervene; Nadia and her ex-boyfriend had settled on visitation, but his infidelity put an end to that amicable agreement. "This isn’t to spite him or hurt him, but he screwed up, and one of the things you lose is your ability to see your dog," she says. "He has in e-mails mentioned wanting to see Mia, but the circumstances are different now and I do not want to see or speak with him."

While state legislators in Michigan and Wisconsin have recently introduced laws to bridge the gap between family member and possession for couples arguing over pets, most U.S. states still have no firm rules about the issue, says Favre. "Some judges feel there’s no law that allows them to take into account the best interest of the animal, and they are constrained to do anything but treat them as property." Despite that constraint, pet custody cases have spanned the globe in recent years, popping up everywhere from South Africa to Australia and China, where a court ruled earlier this year that a woman could visit her Pekingese, Beibei, twice a week if she pays support to her ex-husband. Pets are more likely to be treated as property by courts if they are particularly valuable or unique, Hennenhoefer says, such as a purebred or show animal.

For pet owners moving on with their lives, introducing a new flame to a pet, as Gyllenhaal did with Witherspoon, can hurt the ex even more than the new boyfriend or girlfriend. "My ex-wife is seeing someone else now, so that upsets me that he’s stepping in and taking my place with the cats," Ryan says. "It’s ridiculous, but it’s true. I feel like they’ve got a stepfather now, and I don’t really like that."