In most states the law treats the spouses’ ownership and possession of pets or companion animals following divorce like other items of personal property, such as household furnishings. If one spouse owned the pet before the marriage the pet will generally be deemed that spouse’s separate property and ownership and possession will remain with that spouse following divorce. But if the spouses acquired the pet during marriage it will be marital property (community property in community property states) and the court may award ownership of the pet to one spouse as part of the division of the marital property—sometimes using a “best interests” standard similar to the standard used in child custody determinations.

In some divorces the spouses are able to agree to a custody-sharing arrangement for a pet. And a few states (California, Illinois, and Alaska) have enacted statutes that allow family courts to treat the custody and care of children more similarly to care (support) and custody issues for children. In these states the well-being of the pet is the guiding factor for the courts in making such decisions.

In Delaware, as in most states, pets are generally considered personal property in the context of divorce proceedings. If a pet was owned by one spouse prior to the marriage, it is typically regarded as that spouse's separate property, and ownership and possession will likely remain with that spouse after the divorce. Conversely, if the pet was acquired during the marriage, it is considered marital property. Delaware courts may then decide on the ownership of the pet as part of the division of marital property. While Delaware does not have specific statutes that address pet custody in the same manner as child custody, courts may consider various factors in determining the best arrangement for the pet's care post-divorce. It is also possible for divorcing spouses to negotiate a custody-sharing arrangement for their pet, although this is dependent on the agreement between the parties. Delaware does not follow the community property system, so the division of property, including pets, is based on equitable distribution principles rather than community property laws.