Background and Introduction Nearly 68 percent of U.S. households owned pets in 2013, and so it's only natural that we would turn to our four-legged friends for comfort as a marriage collapses. For many couples facing divorce, their children have four legs and lots of fur, but Colorado law regarding parental responsibilities does not apply. Naturally, these people want to know what happens to man's best friend during a divorce? Pets are Property While we might treat our pets as integral members of the family, most courts consider them to be personal property-- similar to a car or diamond necklace. Last year, however, a New York judge filed a landmark custody suit over Joey, a miniature dachshund whose parents were both desperate to keep him. The judge planned to treat Joey like a child by ultimately determining which spouse would best serve his interests, asking questions such as: 1) Who spent more time with the dog on a regular basis?; 2) Who financially supported him on a primary basis?; and 3) Who would now be most able to cater to his needs? The case was eventually settled out of court, with one spouse surrendering permanent custody to the other, but it could still play a major role in treating pets less like property and more like human beings in the future. Considering Alternate Arrangements In Colorado, the general rule is that pets are property--whether it's a herd of cattle in our state's more rural communities, or the furry friend who faithfully greets you at the door everyday after work-- and should be equally divided as such. In light of that, one thing to consider is letting the pet stay with whomever gets primary custody of the children; that way, they don't lose a beloved pet along with a parent. When determining who keeps the family pet, pet parents should take into consideration whose work schedule is better fitted to pet parenting as well as whose living arrangements are the best suited. It might not make sense to move Fido from a house with a big back yard to a studio apartment downtown on the 18th floor. Alternatively, if you can agree to a pet co-parenting plan with your ex-spouse, make sure the "custody" agreement is written and is part of your separation agreement in the divorce, or else there is little chance of enforcing the agreement in the future. Generally for those involved in sporting activities with their pets it is best if future care of the animals can be treated in the same manner as sharing custody of a child, or if the parties have more than one pet, if they can each agree to divide them. Taking the Matter to a Judge can be Risky Overall, it seems ridiculous that pets are treated the same as a car or the same as that diamond necklace in a box on your dresser, but until the law evolves, we can only work within its parameters. If you have a conflict regarding a pet, taking the matter to court may not bring the best outcome, because Judges don't have the ability to "split the baby," and as such, they are likely going to have to pick a party to award the pet to. Divorcing couples might fair much better reaching an agreement regarding their pet that works for their schedules and their own situation, rather than taking the matter to court. If this is an issue for you, consider using a skilled mediator to help you with your case.
Nearly three-quarters of U.S. households own pets. There are about 218 million pets in the United States, not counting several million pet fish. Americans spent approximately $61.4 billion in total on their pets in 2011. According to the Bureau of Labor Statistics. There are 70 million dogs and 74 million cats. Compare this to the number of minor children in the U.S.: approximately the same number as cats alone, 74 million. For many couples, their pets are family members. When a couple decides to get divorced, one of the big questions is who gets to keep the pets. The verdict can be heartbreaking for the person left without their beloved companion. So it isn’t surprising that pets can spark custody battles when couples divorce. In a 2006 survey by the 1,600-member American Academy of Matrimonial Lawyers, a quarter of the attorneys who responded said pet custody cases had increased noticeably since 2001. The academy is due for another survey, but there is no doubt such cases have grown steadily since then. The growth of same-sex divorces, civil unions and domestic partnership breakups that end up in court are among other reasons pet custody fights have become more common. But pet “custody" isn’t at all the same as determining child custody. Laws governing pets consider them personal property, under human ownership and control. Court decisions are made to protect the interests of the owners, not the animals. With child custody, the best interests of the children prevail when it comes to custody, visitation, and support. Courts can award a pet to one owner or the other in a dispute. A pet wouldn’t be treated any different than a computer or a piece of furniture, and couples don’t trade a sofa back and forth every week. When children are involved in a divorce, many judges will keep the pets with the children. But when the pets ARE the children, it’s more complicated. Many courts won’t rule on pet ownership at all. Because pets are becoming such a big part of the lives of so many people, some courts are beginning to change their approach and are willing to treat pets more like children. Courts will then consider the best interest of the pets in determining who gets custody of them, just as with children. Courts can award shared custody, visitation, and support payments to the owners. But with most family courts still unwilling to go there, most pet owners need to work out a contract between themselves instead as part of their divorce settlements. As with so many aspects of a divorce, taking control and coming to an agreement about the decisions governing your own life are far better in most cases than letting a judge decide for you. Even if the laws were to change to allow for broader considerations in determining pet custody, there are still unanswered questions. Are some species worthy of court consideration and protection? Should it just be dogs and cats? Exotic birds like parrots or macaws can live 50 or 60 years, so it’s hard to justify why a parrot shouldn’t be included. What about expenses? Should one owner bear all the costs, or should the couple share costs as well as physical custody? How about medical decisions, especially end of life decisions? Who gets the final say? What if the pet itself generates income through breeding, competition, or entertaining? There is great potential for changes in pet custody laws around the corner, but for now it’s best for couples to try and work out an arrangement they can both live with, and include it in any settlement agreement. For individuals bringing a pet into a marriage, a pre or post nuptial agreement may include provisions for ownership in the event of a breakup or divorce. What’s certain is that society is increasingly accepting pets as members of the family rather than property or ornaments. People are no longer embarrassed about fighting for custody of pets. The day is sure to come when a Corgi is no longer in the same legal category as a car.
Even on occasion when a judge realizes that a pet has a special place in the family's life, in general courts do not see pets any different than the property a couple divides on the basis of equitable distribution. That doesn't prevent couples from fighting bitterly over their pets just as they would if the pet were a child. One after the other high profile cases show the lengths people go to keep their pets with them or away from their ex partners. A few reported cases are as follows: In 2001, a woman in Texas was sentenced to 30 days in jail for refusing several orders from a judge to turn over the two cats her former husband was awarded in the divorce case. In San Diego County, California a couple waged a two-year battle over their dog, which wound up costing over $146,000. In another case in Maryland, two years after their divorce, a couple returned to court fighting over their dog. The circuit judge has threatened to sell the animal and split the proceeds between them if they can't agree on visitation. The wife has spent $20,000 to keep the dog. In Dallas, Texas a couple spent $16,000 in lawyer fees fighting over their dog. After the husband "dog napped" the animal for nine days, the wife now gets custody and he gets visitation. These cases make it apparent that people have deep love for their pets and will do anything to keep them. But sadly, in most cases, judges refuse to address the issue, considering it a waste of the court's time. Several states across the country treat pets in the same way they would in dividing up a room full of furniture. Plainly stated, the dog is part of the marital property and has to be equitably divided according to its value, if value can be assigned. Receipts must be shown proving which spouse has been the functional owner of the pet. In other words, the spouse who has paid for things such as medical treatment, training, grooming, maintenance and upkeep is the one who is considered the owner and gets to keep the dog. In some rare cases, tests have been administered based on the "best interest" theory for custody, which measures the degree of attachment between pet and human. Some people don't realize it, but animals react to a split of their human companions. In a divorce, dogs and cats become depressed and anxious. Usually, dogs and cats go through a period where they look for the missing person until they adjust to the person being gone. They do not understand why the person has left. Many dog trainers report getting calls about pet behavior from those who don't realize that the break-up of the relationship was the cause of the pet's distress. According to a poll taken by members of the American Academy of Matrimonial Lawyers, the number of pet custody cases is on the rise and until things change according to law, most courts will continue to treat pets as property. Based on the law, it's probably best for a divorcing couple to make every attempt to negotiate pet custody amicably on their own rather than getting the courts involved.
In California, pets acquired during marriage are presumed to be community property.What does that mean? In a divorce or domestic partnership dissolution, the family court assign the pets similar to the way they divide property such as furniture or vehicles. In other words, one spouse gets the pet, and the other does not. I have not had any cases where the court ordered a shared custody arrangement of the pet when the parties are in dispute. Rather, the court generally adopts the best interest standard for pets; where will your furry friend be most comfortable? Who was the primary caretaker of the pet during the relationship? Who has moved into a residence that allows animals? Will the pet be mistreated if s/he is in the control of one party? This is a subjective test and therefore litigation is frightening because it is difficult to determine who will win. Unlike children, where a custody order can be modified from time to time, when a pet is assigned to one party, the other party generally loses forever. Despite the general rule of pets being considered as property, they have gained some important legal rights. The victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals. They can also obtain an order that the domestic violence perpetrator must stay away from the animal(s) and/or refrain from taking, selling, concealing, attacking etc. the family pet. How can you avoid a pet property dispute? Consider a prenup which will dictate who gets the family pet in a divorce or domestic partnership dissolution. Negotiate a shared "custodial" arrangement with your ex before the divorce is finalized. Many people would rather share a pet than take the risk that the Court will award their little buddy to the other partner. Just because there are no family laws that require the court to order a shared custodial relationship -- doesn't mean you can't agree to be creative with pet custody. Some of my clients have agreed to an alternating week situation with each 'parent' having the pet 50% of the time. They've also agreed to terms whereby they will be given a 'right of first refusal' for pet care. In other words, if one spouse is going out of town, s/he will offer the pet to the other spouse first, before choosing a pet sitter or boarding. Another idea is to negotiate how medical bills will be shared and whether or not one pet parent will need to notify the other prior to obtaining medical treatment and/or a new vet. Consider giving up a cash asset or taking on more than your fair share of debt in exchange for keeping your dog. If it is of highest importance to you to ensure that the pet stays with you (and/or the children if you have primary custody), it might be worth giving up something that entices your ex to give up the pet. Ask yourself the question, in 5 years will this matter? I assume keeping the pet WILL matter but perhaps taking on an extra credit card will not. In any case, pets often have a significant bond with their owners -- the thought of losing a pet in a divorce can sometimes feel extremely emotional and stressful. Ensure that you consult a legal professional if this is an issue that you are concerned about. Should you wish to discuss your pet situation in detail, feel free to schedule a free 30 minute consultation with a lawyer at Levine Law Group. (510) 595-4112
The end of a relationship can wreak havoc on your emotions. But, with proper planning and familiarity with the law, the process of dividing up property and determining visitation rights doesn’t have to be a total nightmare. Here are some common questions that arise in a same-sex breakup situation. How do you go about dividing up items you’ve purchased together? In the absence of a comprehensive set of legal rights and obligations, a same-sex couple may formalize their relationship by entering into a contractual arrangement called either a cohabitation agreement or a domestic partnership agreement. This agreement may cover a number of different subjects. It may address, for example, the pooling of income during the relationship; the division of responsibilities for expenses; and/or the division of property, support payments and method of dispute resolution upon the couple’s separation. No reported decision in Pennsylvania specifically addresses the enforceability of a domestic partnership agreement between same-sex partners. In Knauer v. Knauer, however, the Pennsylvania Superior Court held that an agreement between unmarried partners is enforceable so long as it is not predominantly based on sexual consideration. Despite its potential unenforceability, a domestic partnership agreement evidences the familial nature of the relationship between the partners and provides evidence of the parties’ intent regarding the sharing and titling of property. For instance, in an unreported decision citing Knauer, the Court of Common Pleas for Northampton County enforced a property settlement agreement between same-sex partners and, in doing so, held that the agreement was not against public policy. Who gets to keep the pet? Do either of us have visitation rights? Lately, family-law judges have recognized that pets are not just like furniture. In a heterosexual divorce case, the judge will listen to the parties and then decide which one is better suited to care for the pet or has more of an attachment or history, and will generally grant ownership to that individual. However, since same-sex couples do not go through divorce proceedings to dissolve the relationship, they typically won’t have a legal decree of ownership. The decision of ownership will have to be made by the individuals at the time of separation, perhaps in mediation, or provide for such a situation in a domestic partnership agreement detailing the ownership and visitation rights at the time of pet purchase. Who gets to keep the security deposit on our apartment? Security deposits are usually paid back to the individual whose name was on the check for the deposit. If, as it usually happens, both of you contributed to the deposit but only one person wrote the check, the person whose name was not on the check will have to rely on the honesty of the check writer to give back the portion that doesn’t belong to him or her. This can be avoided by contracting for this scenario in advance, when the deposit is paid. Otherwise, the matter will have to be taken to small-claims court. What are the rights of the non-biological parent after a separation if the child was conceived during the relationship (between men as well as women)? For same-sex couples, there are three general paths to having children: foster parenting, adoption and assisted reproductive technology (ART), i.e., intrauterine insemination and/or in-vitro fertilization for lesbian couples and surrogacy for gay couples. Same-sex couples might also pursue a combination of these paths to establish a family. In the absence of a second-parent adoption or a shared-parenting agreement, the court held in T.B. v. L.R.M. that the former same-sex partner of a child’s biological mother had standing to seek custody or visitation using the in loco parentis doctrine. Whether custody or visitation will be awarded depends on the child’s best interest. To obtain primary custody, the partner must overcome the legal parent’s prima facie right to custody and prove by clear and convincing evidence that the award of custody is in the best interest of the child. In loco parentis status not only affords a non-legal parent standing to pursue custody or visitation of a former same-sex partner’s child, but also comes with potential child-support obligations. In L.S.K. v. H.A.N., the court held that the legal parent’s former partner was equitably stopped from asserting that she had no obligation to support their five children when she had taken on a parental role, cared for the children and sought custody of them following the breakup of the relationship.
The number of custody battles fought over pets has grown increasingly in the past decade. While the battles over pet custody have become increasingly common, they're not all that new. With 124 million dogs and cats living in U.S. households combined with the high divorce rates, it's only reasonable the issue of who keeps Fido will creep into divorce litigation. Are Pets Property? Technically, in divorce actions, pets are considered property and are divided accordingly. But considering the role as family member many pets have now assumed, judges are beginning to soften. The value pets bring to our daily lives is indisputable and the proliferation of animal issues in this area of the law is unavoidable. An example of the bond we've developed for our pets is our practice of conveying human concepts such as "adoption," "sitting," and "fostering" onto our pets. In fact, legally, the term, "custody" is inapplicable in a dispute over pet ownership. But our furrier friends have become much more precious, and we've welcomed them into our homes and oftentimes onto our beds. Consider the Costs It's difficult to determine whether involving the courts in this type of dispute is an appropriate progression for society without addressing the additional costs involved. Court systems are beleaguered by financial constraints for present domestic litigation. Domestic litigants often complain that obtaining a hearing date is quite difficult. The delay involved often contributes to the frustration and adds to the desire to 'just get it over with.' To burden this strained system additionally seems unwise or in the least, poorly timed. Consider also the additional issues triggered if children are involved: Can a child's bond with a family pet sway parental custody determinations? "Best Interest" of the Pet? More often, rather than strain the system's resources, judges will require the parties to reach a settlement as to pet custody and if they're unable, award custody on a strict property analysis. Unfortunately, judicial resistance to entertain 'best interest' arguments for pet custody has the practical effect of increasing attorney fees and adding angst to contentious disputes. However, in a country in which pet care is a 50 billion dollar industry, I'm willing to gamble some domestic litigants are unconcerned with the personal costs involved in a pet custody dispute. Despite the increased costs associated with pet custody disputes and the uncertainty that prevails in most jurisdictions, it is likely pet custody battles will demand a more serious consideration in the area of domestic litigation. More drastic changes will likely come from state legislatures. A Wisconsin representative presented, what's believed to be the first of its kind, a pet custody law for divorcing couples that addressed visitation schedules and appropriate standards to be applied in custody determinations. Until such guidance is provided, it's important to realize every step to protect our valued pets. It will soon become unacceptable to treat Fido like the fine china in a divorce property distribution. Protect Your Pet As a family law attorney, I advise my clients to consider pet protection documents--prenuptial and ante nuptial. There are also various trust documents available to help owners and their pets remain together and to ensure that top priority is given to their care.
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