In a divorce, the court is charged with allocating all property. More specifically, the judge must determine what value that property has, who will get it, and how it fits on the overall balance sheet.
Seems like an odd way to think about Fido, but, believe it or not, that’s how many courts have historically handled pets in a divorce. More often these days, though, the courts are becoming more sensitive to the reality that pets are more than an ottoman. They’re trusted, loving members of a household. They are, in other words, family.
If you should find your family splitting up and considering divorce, you should be armed with knowledge — information that’ll help guide you through what’s an otherwise messy and raw time in your life. A little preparation can go a long way toward easing that pain.
“I’ve seen cases where the court has not only listened to evidence, but asked for evidence to be presented on the relationship of each party to the pet,” Jay said.
And that’s the first thing you should know in a divorce involving a family pet:
Before you consider pursuing custody of your dog or cat, you should think sincerely about why you want to move forward with that course of action.
For one, not all judges will even consider taking the matter to trial.
“Some don’t have the patience for it and will tell the litigants, through their lawyers, to figure out where this pet will go or I’ll flip a coin. But those judges are in the minority and we’re seeing fewer of them,” Jay said.
One judge had a particularly memorable way of deciding a case of pet custody, Jay said.
“There was a judge in Franklin County — he was a tough son of a gun, but he was also a dog lover,” he said. “He would talk rarely about himself personally except when it came to his dogs.”
In the case, the two parties had “virtually everything else resolved,” but were arguing about who would get the dog. Jay’s client insisted he get the dog, while the wife, who kept the pet during the couple’s six months of separation, was equally vehement that she wanted the dog, in addition to claiming Jay’s client abused the pet.
So the couple’s lawyers went to the judge to resolve the issue and the judge said they’d all meet at a park at 9 o’clock with the dog. The husband would be on one side and the wife on the other and both would call for the dog. Whichever side the dog came to would keep him.
“My client’s immediate response was, ‘She’s alienated the dog against me,’ so we immediately resolved the case,” Jay said. “He knew he couldn’t possibly win — he knew the dog wouldn’t go anywhere near him — but he was determined to hurt her to the quick by taking the dog that loves her so much. He was willing to go to trial over it and the judge was not.”
That also illustrates what’s often at the heart of these disagreements, Jay said.
“People are willing to fight over about anything,” Jay said. “The opposite of love isn’t hate; it’s indifference, and if people can continue to fight then that’s one way to stay connected.”
If you find yourself with a judge willing to hear the matter, you should know the judge’s decision will likely include who had the dog or cat originally, or, if the pet came into the relationship after the relationship had started, who wanted the dog or cat. The judge will also consider where the animal sleeps and who feeds it.
Judges, Jay said, are also reluctant to split dogs up. If two dogs were raised together, the judge will keep them together after a divorce.
And, of course, there have been cases, Jay said, of shared custody with Fido. And also like the kids, pets can bring a disgruntled couple together in unity.
“My client really wanted to (share custody with his ex) and it seemed the only way to settle the case,” Jay said. “But they didn’t like each and yet still seemed able to share pets somehow. Sometimes it’s clear the couple’s not fighting over that particular animal in so much as they’re fighting about the end of the marriage.”
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