In the United States, a significant number of households, count a companion animal as a beloved member of their family. Ironically, the legal status of these furry family members are that of property. Although in recent years the Courts have determined that animals are not property in the same manner in which we view a table, pillow or other such inanimate object, they still do not enjoy the legal status that most pet owners believe they deserve.
The legal status of the family pet is particularly troublesome in divorces, when in the absence of an agreement as to which party gets possession of the “property,” a Court must determine the disposition of the pet
in accordance with the other laws used to decide whether the property is marital, separate or possibly, a combination of both.
For better or for worse, the issue is often simplified if the pet has an extrinsic value (such as when an animal is a purebred or a show animal), as well as an intrinsic value. In these cases, a resolution may involve a “buy out” utilizing the monetary value of the animal. Unfortunately, most cases involve pets whose sole value is that of the heart, and other considerations must be explored.
In the event that there is no agreement as to possession, any reasonable negotiation must consider the following:
Is the party wanting the pet:
1. financially able to care for it?
2. reside in a place where pets are permitted?
3. have a work schedule conducive to caring for the pet?
4. have there been any allegations of abuse and/or neglect (in this regard there are both criminal and Family Court options available)?
In addition to the foregoing, an important consideration when children are involved is which party does or will have residential custody. As many realize, divorce can be extraordinarily hard on the children, and the lose of a pet will likely only compound an already difficult situation.
Even in circumstances when the litigants do not agree regarding who will have possession of the pet, most will formulate a quasi visitation schedule. While this may work for a period of time, it seems to be a reasonable resolution, there are often practical issues which arise in the future, such as: residency changes, new significant others entering the picture, financial circumstances and other issues, which may effect one’s ability to care for the pet even for episodic periods of time. That being said, a schedule may provide a reasonable resolution.
Like most divorces, it is always preferable for litigants to chart their own destiny/settlement. While the law is evolving regarding the disposition of pets during a divorce, it is not given the attention that most would hope. Thus, it is critical that the parties not only consider what is best for themselves and their children, they must also remember that their pet is a living breathing thing that needs to be reasonably and humanely addressed during a divorce.