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

Custody battles for kids, potential kids, and pets can get messy

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.

Key Takeaways

  • Paperwork that you signed at your doctor’s office can determine the fate of frozen embryos in many cases.
  • While pets are considered property, courts may still try to ensure that they end up in the situation that’s best for the pet.
  • Child custody and visitation don’t have to be contentious decisions made by a judge; parents can work out their own agreement and rely on courts primarily for enforcement.

What Happens to Frozen Embryos After a Divorce?

Frozen embryos can be a by-product 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 that 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 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 mid-2018.

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 a Star Wars toy collection. Pets may be considered community property if they became part of the family after marriage, or 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 after divorce, and they will need to make arrangements for normal weeks, holidays, vacations, and special events.

When one parent receives sole custody, they are considered the "custodial parent" and make most of the decisions. 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.

Legal vs. Physical Custody

Legal custody refers to a parent’s right to make decisions about the child’s life, such as where they will attend school, where they will live, what medical treatment they will receive, and what sort of religious upbringing (if any) they will have. Physical custody refers to a parent’s right to live with the child and provide their day-to-day care.

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 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.


What decides the custody of frozen embryos in a divorce?

It depends. Usually, a contract between husband and wife is written when the embryos are created, and it sets out custody terms. Nevertheless, in some states, this contract can be superseded by state law. Of course, if there is no preexisting agreement and no state law, then all bets are off, with the decision likely ending up being made by a court judge.

What decides the custody of pets in a divorce?

In all 50 states, pets are considered to be property, so custody is subject to state laws regarding the division of property. Pets may be considered community property if they were acquired during the marriage, and a number of different factors can be considered in awarding custody depending on state law. These can include which spouse has provided the most care to the pet, whether a spouse has been abusive to the pet, and whether the pet should go to the spouse who has the most custody of the children. In California, the court awards custody based on which spouse will give the pet the best care.

What decides the custody of children in a divorce?

It doesn’t have to be decided by a court. Divorcing spouses can agree on custody terms between themselves or with the assistance of a mediator and then submit the plan to a court, asking the court to enforce the agreement. If custody is determined by a court, numerous factors are involved, including emotional support, community ties, and where each parent is going to live. Finances are not unimportant but usually are not the deciding factor in awarding custody. Some couples opt for an arrangement known as “nesting,” where the children remain in the family home and the parents take turns living there with them while maintaining their own living arrangements for the period when they are not with the children.

What is the difference between legal custody and physical custody?

The former pertains to making decisions regarding a child’s life, including religious instruction, medical care, living location, and schooling. The latter is the right to live with the child and take care of them on a day-to-day basis.

Article Sources
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  1. University of North Carolina School of Law. "Who Gets the Frozen Embryos During a Divorce? A Case for the Contemporaneous Consent Approach," Page 116.

  2. NBC News. "Divorced Woman Can't Use Frozen Embryos, Arizona Supreme Court Rules."

  3. The New York Times. "The Latest Issue in Divorces: Who Gets the Embryos?"

  4. State of Arizona. "Chapter 128, Senate Bill 1393."

  5. Animal Legal Defense Fund. "Animals’ Legal Status."

  6. The American Bar Association. "Separating Property."

  7. Connatser Family Law. “Who Gets the Fur Babies? How to Ensure Pet Custody After Divorce or Cohabitation.”

  8. California Legislative Information. “Family Code: Division 7. Division of Property, Part 4. Special Rules for Division of Community Estate, 2605."

  9. The American Bar Association. "Child Custody and Support: Deciding Factors in Awarding Child Custody."

  10. The American Bar Association. "Child Custody and Support: Issues Surrounding Visitation."

  11. Cornell Law School, Legal Information Institute. "Legal Custody."

  12. Cornell Law School, Legal Information Institute. "Physical Custody."

  13. The American Bar Association. "12 Tips for a Successful and Efficient Custody Mediation."

  14. The American Bar Association. "Child Custody and Support: What Happens When the Parents Share Custody?"

  15. The American Bar Association. "Child Custody and Support: How are Child Support Guidelines Set?"

  16. Psychology Today. "Are You Getting a Divorce and Thinking About Nesting?"

  17. The American Bar Association. "Child Custody & Support: What Happens if the Parent Who Has Custody Wants to Move to Another State?"

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