Who Gets the Frozen Embryos in a Divorce—and Other Issues

Modern divorces bring with them interesting (and potentially painful) problems to resolve—like who gets to decide the fate of any frozen embryos or who gets custody of shared pets. It also involves traditional issues, such as child custody and visitation rights. 

Deciding how to share or divvy up rights to living and potential living beings can be one of the most emotionally charged issues in a divorce. Here’s an overview of how the legal system tends to handle these choices when spouses can’t agree.

What Happens to Frozen Embryos After a Divorce?

Frozen embryos can be a byproduct of couples trying to conceive using artificial reproductive technology. Embryos may be left over after previous treatments, and what happens to unused genetic material will be life altering.

Your doctor’s office may have had you and your spouse sign an agreement before beginning in vitro fertilization to specify what would happen to any frozen embryos if you were to divorce. Typical choices include having them destroyed or donated to medical research or to a third party. Some couples have elected to allow one spouse to decide later. The feelings you may have had about the issue when you signed the contract as a happy couple may be different from the feelings you have upon divorcing. Worse, you may not have realized the contract you signed was legally binding. 

The issue can be especially complex if either spouse has become infertile (due to cancer treatment, for example) and the frozen embryos are their only chance to have a biological child, but the other spouse does not want to have a child (or another child) with their soon-to-be ex. The other spouse could be saddled with unwanted parental rights and responsibilities, such as providing child support. A 2020 court decision in the Arizona Supreme Court ruled that an infertile divorced woman could not use her frozen embryos because her ex-husband did not want to have a child with her, citing in part his liability for child support under Arizona law, according to a report by NBC News.

A court may uphold that contract, even if it specifies that the embryos be destroyed against an infertile spouse’s wishes, according to a 2021 report in the New York Times. However, a court may also rule that state law supersedes a fertility contract. In Arizona, the courts will award the embryos to the party most likely to use them to create life, assuming a fertility contract was signed after the state’s new law passed in late 2019.

Who Gets Custody of Pets After a Divorce?

Pet ownership is another issue that varies by state. Pets are considered property, just like a pickup truck or Star Wars toy collection. Pets may be considered community property if they became part of the family after marriage, and separate property if they belonged to one spouse before marriage or were gifted to one spouse during marriage.

When spouses can’t agree on who will become the pet’s sole owner, courts may decide based on who has provided more of the pet’s care. If the children in the family are attached to the pet, courts may give a pet to the parent who gets custody. When there is more than one pet, the pets may get split up. If one spouse has abused or neglected the pet, the other spouse may get ownership.

California law gives more consideration to the animal’s welfare than many other states do. California’s Family Code 2605, effective Jan. 1, 2019, says the court may assign sole or joint ownership of a pet based on which spouse will give it the best care. The court can also assign temporary custody to one party while divorce proceedings play out.

Child Custody Arrangements After a Divorce

Where there are children, there are a variety of custody options. Parents can get joint or sole custody of their children post-divorce, and they will need to make arrangements for normal weeks, holidays, vacations, and special events.

One parent may receive sole custody if the other parent is abusive or suffers from substance abuse disorder—or if the other parent doesn’t want or can’t manage that level of responsibility. Visitation by the other parent may be allowed if it is in the child’s best interest.

Under joint custody, one parent may make all decisions about the child’s upbringing, or the parents may share decision making. The child will alternate living with each parent.

Child custody and visitation rights don’t have to be decided by a judge in court. Parents can draw up a written plan on their own or with the help of a mediator or arbitrator. They can then ask a judge to turn their document into a court order that can be enforced against either spouse. When parents can’t reach their own agreement, a judge will decide based on factors such as financial support, emotional support, and community ties.

Some families handle joint custody by having the parents take turns living in the family home so the children can stay where they are—a practice sometimes called “nesting,” according to Psychology Today. Each parent will have their own residence nearby. Instead of the kids having to pack up and move back and forth frequently, that burden and disruption falls on the parents. This arrangement may not be financially feasible for many families, as it can require maintaining three residences. It might be more workable if one or both parents are able to move in with a nearby relative or get a roommate. 

Besides their impact on children, custody decisions can affect a parent’s ability to move, which may limit their ability to get a new job or get a fresh start.

The Bottom Line

Divorces are tricky enough when they only involve the division of money and property. They become far more complex when pets, children, and potential children (in the form of frozen genetic material) enter the picture. If possible, you may want to work through these issues in mediation or arbitration. Asking a judge to make these decisions for you in court will eliminate much of your control and may result in unpredictable and undesirable outcomes.