Custody disputes involving dogs often make the headlines.
Who gets Tëma, a Japanese Chin, has been a point of contention in the divorce of Olympic figure skater Johnny Weir and his estranged husband Victor Voronov. Voronov filed papers with a New Jersey court recently requesting financial support and the return of Tëma, claiming he is the primary caretaker and is “extremely attached to him” the pet and is “devastated” by Weir’s removal of Tëma from their home.
Dog disputes also make the movies. Fans of the 2001 hit Legally Blonde may recall the classic scene in which young law student Elle (played by Reese Witherspoon) accompanied her new BFF Paulette to Paulette’s estranged husband’s trailer to discuss the divorce. Ultimately Paulette grabs the bulldog, saying, “I’m taking the dog, dumbass.”
While “taking the dog” may appear to be the easiest way to settle a dog custody dispute, the courts frown upon such behavior and would rather have divorcing parties work it out in the divorce agreement.
State by State
Different states handle this issue differently. Illinois, for example, has no laws that specifically address how pets should be handled during the property division phase of a divorce, forcing couples to generally reach an out-of-court agreement. In California, meanwhile, pets acquired during marriage are considered to be community property, leaving a judge to instruct the couple to treat Fido similar to how they would divide property such as furniture or vehicles.
“It’s important to understand your state’s pet custody laws to know how to resolve any pet custody issues,” said divorce attorney Kelly Chang Rickert. “It may be worth discussing this with an attorney at the beginning of a divorce proceeding rather than waiting for a major dispute to erupt.”
One way to avoid a property dispute over Buddy is for the couple to enter into a prenuptial agreement that dictates who gets the family pet in a divorce or domestic partnership dissolution.
While laws are designed to protect the best interests of children in divorce by allowing for shared custody, visitation, and alimony, the laws for pets are intended instead to benefit the owner. In states where pets are considered personal property, a judge will look out for the best interest of the pet, determining who to award the animal to based on who would better care for it, who has a greater attachment to Princess, where the animal will be most comfortable, and who lives in a place that allows animals.
50/50?
When deciding who gets the pets, the court generally will go through the same steps it would go through to divide property. It will consider whether its jurisdiction is a community property (split 50/50) or an equitable distribution (split fairly) state, and whether the property is marital or separate. It will also consider whether the couple already has a prenuptial or postnuptial agreement.
Many courts shy away from awarding “visitation” rights, concluding that it would not be in the best interest of the animal to have to go between the divorcing couple’s two residences. The courts have concluded that to grant shared custody or visitation of the couple’s pets would be the same as having them trade their juicer back and forth every week.
But this is changing as pets become a bigger part of people’s lives. Some courts are beginning to treat pets more like children and award, essentially, “joint custody,” allowing the owners to work out an agreement between themselves.
If they can’t do it on their own, some couples will go to a mediator, who will help both parties come to a mutually acceptable agreement. Yet others have agreed to terms that involve a right of first refusal for pet care, so that if one spouse leaves town, he or she will offer the pet to the other spouse first, before choosing a pet sitter.
While working out a custody arrangement for children is often the most emotional part of a divorce for couples, determining who gets Rover or Barney or Scooby can be just as difficult – especially for couples without children. It’s wise to consult a divorce attorney about pet custody issues before getting too involved in a divorce settlement to save time, money and heartache.
