The average rate of divorce of first marriages in the U.S. is 50%, odds are you or someone you know will face this daunting life event as some point. Besides the obvious pains of child custody, division of assets and spousal support; one thing that’s often an afterthought is the ultimate legal ownership of pets acquired before or during the marriage.
A situation involving pets should be addressed with your family law lawyer when planning your case. Although we may view our beloved pets as our “fur babies”, legally they are not much different than your favorite recliner or lamp, as they are considered personal property. Family court judges have no obligation to take in account of anything more than the pet’s monetary value. There are many things that may be legally presented to show ownership or to sway the opinion of a family court judge in awarding ownership to the deserving party. Things a family court judge may taking into consideration are:
- Who is the primary physical caretaker of the pet
- Who paid for the pet and/or fees at the time of purchase/adoption
- Who has assumed financial responsibility for medical care
- Was the pet acquired before or after legal marriage
- Which parent having ownership of the pet would be in the best interest of the children involved
When preparing all your documents for you divorce attorney, pet information may be an oversight when dredging through hundreds of papers and documents related to your divorce case. It is important to take your time assembling paperwork regarding bank accounts, business’, real estate and even pet information. Compiling all this information should be presented to your divorce attorney in the beginning stages of your divorce. When a divorcing couple cannot come to an agreement for pet custody, the judge may be willing to view some evidence that may sway their decision. Some of the followings are examples of this:
- Ownership/adoption papers that have the name of the original owner on them
- Receipts for pet toys, food, enrichment programs, training and veterinarian bills that show which party paid
- Eyewitnesses that can testify to who was the primary caregiver and held responsibility for the animal
- Photographs with the pet and their owner before the event of separation or divorce
- Testimony by a professional and accredited expert witness on animals
- Financial documentation/pay stubs showing the ability of resources to care for the pet
- Documentation that the owner’s home is suitable for the pet (for example: adequate square footage ratio to the size of the pet, secure fencing, and landlord permission.)
- A work schedule showing the potential awarded owner has the time to spend with the pet
There are a couple special circumstances that a judge will take into consideration that carries a lot of weight in their decision. If the pet is a registered service animal, it is extremely likely that the judge will award it to the party who has the medical/emotional condition resulting in the need for a service animal. With registered service animals in divorce cases, it’s pretty much an “open and closed case” and is swiftly awarded to the disabled party. This would be pretty much an open and shut case for your family law lawyer.
If the couple going through the divorce process have children of their own or share stepchildren, this too is a big determining factor when deciding custody of a family pet. As with many facets of divorce, family court systems view the well-being of children as a top priority. It’s also widely believed that the pet staying with the children greatly aids in the emotional strain the little ones experience while innocently being involved in their parents divorce.
In many states, there are laws that consider violence or reckless injury to a spouse’s animal domestic violence. If a restraining order is filed, it may also include the pet by keeping it out of the custody of the abuser. If the couple ultimately ends in divorce, a prior restraining order with mention of the pet is extremely convincing when the judge is determining custody of the pet.
Hire an Experienced Family Law Lawyer
With divorce rates at an all-time high…Sadly, chances are you may find yourself in a custody battle for your “fur babies” at some point. Having all this information before separation or divorce can alleviate some of the stress and concerns you may have during the process. Creating a prenuptial agreement with terms regarding a pet obtained prior to marriage is highly advised. If an animal is acquired after a marriage, updating your prenuptial agreement or even creating a postnuptial agreement with the new terms included it’s a great idea.
It’s always advised that a couple try to resolve their issues on their own before a lengthy, expensive, and draining divorce trial. Unfortunately, every once in a while, the love for our four legged friends can lead to a messy and heart breaking conclusion of a divorce.
Josh is writer and paralegal, with over 10 years of experience in family law, personal injury, criminal defense and more.