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Who gets the dog when we divorce?

On Behalf of | Apr 15, 2019 | Firm News

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Under the law, pets are treated no differently than a couch or a lamp. They are personal property and, in a divorce, will be subject to equitable distribution. However, more and more states are reconsidering how animals should be treated in divorce and separation cases.

Legally, there is no such thing as “pet custody”. However, the case law surrounding pet ownership in divorce and separation is evolving.

Pets are no longer considered traditional property

Since 2009, New Jersey courts have started to treat animals differently. In the case of Houseman v. Dare, a separated couple argued about who had ownership over their dog.

The initial ruling gave the man ownership of the dog while the woman was given monetary compensation. However, the woman did not want compensation. She was seeking continued companionship with her dog.

The Court determined that pets have a strong “subjective value” and should be distinguished from other forms of personal property. In the end, the judge ordered a shared possession agreement, or “pet custody”, so each individual could continue a relationship with the dog.

The Houseman v. Dare decision set the following precedent in New Jersey:

  • Pets are still considered personal property under the law, but they are considered to have significant emotional value that cannot be compensated for.
  • Unlike child custody cases, pet ownership rulings are based on contract law, not on the “best interest of the animal”.
  • New Jersey can issue shared possession orders for pets.

How does the Court determine who gets the animal?

If one spouse owned the pet before the marriage, the court may consider it separate property. Therefore, it may not be subject to equitable distribution, similar to other pre-martial personal property.

However, if the pet was acquired during the marriage, the Court will consider other factors:

  • Who is the primary caretaker of the animal?
  • Who has been paying the bills pertaining to the pet’s care?
  • Will either spouse be unable to continue caring for the animal after the separation?
  • If there are children involved, who has primary custody of the children? If the child(ren) have an attachment to the animal, the court will likely give the pet to the parent with primary custody because it is in the “best interest of the child”.

The well-being of the animal is considered based on the discretion of the Court. Therefore, if you want to keep your pet, it is important to collect evidence that supports why you should maintain ownership of the animal over your spouse.

The best way to avoid a dispute regarding pet custody is to have a written document, such as a prenuptial agreement, that determines which spouse will receive the animal should a divorce or separation occur in the future. If there is no prenuptial agreement surrounding the ownership of the pet, a couple can work through negotiation or mediation to come to an agreement.

If you are worried about losing ownership of your pet in a divorce or separation, please contact our attorneys for assistance.

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