With the possible exception of people featured on reality television shows, no one gets married while planning to break up. Nevertheless, current statistics suggest that one in every two marriages will end in divorce.

What happens to horses and other animals when their owners’ marriage fails?  What should happen?

Animals are considered the personal property of their owners in every state. This legal status suggests that the ownership of a couple’s animals should be approached just like the ownership of other property such as furniture, automobiles, and a house. A judge could simply calculate the market value of the animals, add that amount to the value of other marital property, and then come up with an equitable division of the total. Bring out the calculator, no mess, no fuss.

The problem with this by-the-books approach is that animals are demonstrably unlike other inanimate property. Animals are different, as any owner can attest. In fact, an Associated Press-Petside.com poll released in June 2009 found that half the people who responded consider their animals to be part of the family—like children. The same cannot be said for appliances.

The law is very clear about how a judge must determine issues of child support and custody in a divorce proceeding. The universal standard guiding a court is the "best interest of the child." It places the welfare of the child above the desires and whims of the parents and it is a sensible approach. States have various laws designed to protect the welfare of animals, some of these laws better than others, but the law nearly always is silent about how a court should deal with animal custody issues in a divorce. There is no comparable "best interest of the animal" standard to guide courts in family law disputes.

A few forward-thinking judges, such as Judge Graydon S. McKee III in Maryland, are taking matters into their own hands. Judge McKee apparently was dissatisfied with a state law that considers pets jointly owned marital property that must be sold if divorcing couples cannot agree on who gets ownership. Earlier this year, he handed down an order granting shared custody of Lucky, a mixed breed former stray, to the animal’s owners. The couple, who have no children, found Lucky living under a construction trailer in 2008. They took the dog home, but then filed for divorce a year later. Both people wanted to keep the dog. Instead, Lucky will alternate homes every six months pursuant to Judge McKee’s order.

In a similar case last year in New Jersey, Superior Court Judge John Tomasello initially granted ownership of a Pug named Dexter to one member of a couple who were getting a jump on divorce and were splitting up before the wedding. The custodial owner was ordered to pay $1,500, the dog’s purchase price, to the other person. Upon rehearing, though, the judge changed his mind and granted the couple shared custody of Dexter, who now spends five weeks with one owner, then five weeks with the other.

In Massachusetts, a judge has the option of requesting expert testimony from an animal behaviorist, who can recommend which partner should get custody of the family pet. In some states, when domestic violence is a concern, animals can be included in a court-issued protective order.

On those rare occasions when a judge considers the best interests of an animal in domestic relations litigation, the animal in question almost always is a family pet, usually a dog or cat. Courts generally treat horses and other livestock strictly as marital property, assets with a monetary value that must be allocated equitably to the parties. This might involve giving ownership to one of the parties, or selling the horses and dividing the proceeds of the sale. The more valuable the horses, the more likely they will be treated as valuable assets of the marriage.

Without specific authority to do so, most judges are unlikely to stray from the animals-as-property standard.

Horses and other animals deserve special consideration when there is a divorce. The question is how domestic relations law should change to accurately reflect the way people feel about their animals.  Should there be a "best interests of the animal" standard in family law?