Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle or gerbil. For these owners, the pet is an integral part of the family. But owner beware: in my experience as a divorce attorney, the pet that you love and cherish on can easily be taken away from you in an instant if you are involved in a nasty divorce.
According to a quarter of respondents in a 2006 survey by the American Academy of Matrimonial Lawyers, pet custody cases have increased noticeably. So who gets Fido? If you think you are entitled to your pet because you think you love him/her more, you're barking up the wrong tree.
Your pet may be considered a member of the family but the courts think otherwise. In divorce cases, the harsh reality is that pets are treated as another piece of property that is being divided in the eventual settlement. Other factors such as veterinary bills, "visitation" rights to the pet, and miscellaneous expenses can turn a nasty divorce into a toxic one.
The best solution for you, your future ex-spouse and your pet is to settle custody and visitation privately to avoid having someone else with no emotional connections decide your pet's fate for you. How the custody is determined can vary greatly too. A judge in one case threatened to put a cat in the middle of a room and grant custody to whichever spouse the cat ran toward. The couple ended up determining custody privately.
Some couples cannot stand the thought of dealing with their ex and put the decision in the hands of the court. Before taking this leap though, here is what will be taken into consideration in a judge's decision:
Ownership: If one spouse owned the dog before the marriage, the dog will typically remain with that spouse when the marriage goes sour.
Primary care : If you are the one feeding your cat, walking your dog, cleaning after your fish or reptile, and can prove that you perform these tasks, then there is a better chance that the pet will remain with you. Additionally, if one spouse is never home due to a busy work or travel schedule, the other spouse is in a better position to claim the pet.
Best interests of the children: If a couple has children, the pets will go where the children go to prevent any further loss, pain or heartache.
Prenuptial agreement: If it was determined in your prenup who would get your pet in the event of a divorce, then there is no argument as to who Fido is going home with.
Remember, the court may not see your pet as a family member but you do. So when you introduce a pet into a marriage, consider all that is stake in the event of a divorce. Not only will you have a happier ending, but Fido will keep his tail wagging too.
Silvana D. Raso heads the family law practice at Englewood Cliffs, NJ-based Schepisi & McLaughlin, P.A. where she counsels clients in all areas of matrimonial and family law, including pet custody.