Pets and Divorce – How to Keep Fifi and Fido in the Family

Here’s some statistical food for thought: according to the American Pet Products Association (APPA) 2009/2010 National Pet Owners Survey, 62 percent of U.S. households own a pet. In its pet ownership breakdown, the APPA reports that American households include 77.5 million dogs, 93.6 million cats, 13.3 million horses and 15 million birds. Clearly, a lot of pets are living with families that will experience divorce.

How does divorce law deal with pets? By law, property acquired during marriage is presumed to be community property. If one spouse proves that a pet was acquired before the marriage, for example, it is considered separate property and the community property presumption is overcome.

In a divorce or legal separation, community property must be divided, resulting in the property settlement. When the pet is community property, the animal’s best interest doesn’t apply, at least not directly. But that is changing.

Earlier this summer in Maryland, Judge Graydon S. McKee III made national news when he ruled that divorcing spouses Gale and Craig Myers would share custody of “Lucky,” their adopted Lhasa Apso. Lucky will spend six months with Gale and six months with Craig. As neither party objected to the judge’s novel decision, it is final. As McKee noted, “It was very clear that both of them love this dog  only fair thing to do was to give each one an equal chance to share in the love of the dog.” Love of the dog? Now that is something novel in the law!

The more time spent debating the future of a family’s furry or feathered companion, the more rancorous a divorce can become. So, if a prenuptial agreement is in the works in contemplation of marriage, consider designing your pet’s future in advance. And if a divorce is imminent or pending, consider divorce mediation. With mediation, a couple has a less formal forum where they may fully express their views, concerns, needs, goals and even pet matters.

With community property pet issues, the neutral mediator outlines points of agreement and points of contention. Some of the facts that will be taken into consideration include the animal’s history with the family; who purchased, fed, trained, exercised and cared for the animal; how the pet will be cared for in the future; and what is in the best interests of the children as concerns the pet. All are important considerations in the alternative dispute resolution (ADR) process.

When divorce mediation successfully ends with a memorandum of understanding between the parties on issues of pet custody and visitation, then a separation agreement covering the animal’s future may be incorporated into the decree of dissolution.