Best Interests of Pets in a Divorce
For many divorcing couples, issues surrounding child custody and child support are a point of contention. While children are more likely to thrive when they spend equal time with both parents, the day-to-day particulars – choosing a school, bringing them to the doctor, correcting poor behavior – can cause even the most amicable couples to fight.
And if you think child custody is contentious, you cannot imagine how much worse it can be when the “children” have four legs and a tail.
But there is some good news for pet owners: New York’s State Senators have sent a bill to Governor Cuomo that, if signed, would “require a judge to consider the ‘best interest’ of a pet before awarding custody to either side in a contentious marital split.” The law would apply to any “’domesticated animal normally maintained in or near the household’ but it specifically excludes farm animals and animals raised to be eaten or sold,” per the New York Post.
Does New York really need a law for pets in a divorce?
Technically, no – judges have always been free to consider a pet’s best interests. The issue at hand is that under current New York law, pets are considered property, and therefore subject to division the way a bank account or rental property would be. For many pet parents, this is an unacceptable designation, as losing custody of the family dog is a worst-case scenario for them. In 2019, for example, a Rhode Island man spent $15,000 trying to get custody of his dogs, eventually taking his claim to the state supreme court. (He won.)
Cases like these are becoming more common, and other states already have legislation designed to protect pets in a divorce. Interestingly, it was a pet custody case in New York County Supreme Court – a couple fighting over a dachshund named “Joey” – that provided the first inkling that these types of cases would increase in number over time.
Determining the best interests of your pets
Right now, judges might consider things like, “who takes the dog to the vet?” and “who pays for the cat’s food?” when they are dividing pets in a divorce. Pet owners know, however, that there is far more at stake when it comes to the wellbeing of your beloved pet. Under the new law, judges may have to consider things such as:
- The effects of moving on the pet. Hill’s Pet Nutrition, which manufacturers food for dogs and cats that is popular with veterinarians, lists moving as a primary cause of stress for dogs. Between the new smells, new people, and new noises (all of which stress out cats too), dogs can easily become agitated, and start exhibiting new or dangerous behaviors. In some cases, stress can lead to extreme itching and hair loss, which can be costly to address.
- The effects of separation on the pet. Does one spouse work from home while the other spouse commutes? That could affect who retains custody of the pet. Pets require stability just like children do, and anything that affects the routine could affect the pet in a negative way. In some cases involving pet cats, being away from home may be the better option.
- Where the children primarily reside. If one parent has a greater share of residential custody of the children, the judge may consider it to be in the pet’s best interest to remain with the children. Some judges may decide that the pet should also move from home to home with the children, provided that the constant moving (see the first bullet) does not harm the pet.
- Who can best care for the pet. Pets are expensive. They require regular trips to the vet, may need special food or medications, and must be entertained, lest they chew the furniture or pee all over the rug. If one spouse can better afford to care for the pet financially and emotionally, the judge may grant that spouse custody.
What if I bought the dog as a gift?
Once the new bill becomes law, none of this may matter.
For now, under current New York law, gifts do not always remain with the receiver, and could be considered marital property depending on what they are. Pets are no different. If you purchase a dog or cat (or fish, or iguana) for your spouse, you may still be able to make a case for custody of that pet even if you end up getting divorced.
If, however, you already owned the pet before you got married, then you may have a stronger claim for custody, provided you can care for your pet appropriately.
What if there are multiple pets in a household?
The judge could split custody of the pets if that is in the pets’ best interests. If your pets are bonded, however, the chances are good that the judge would try to keep them together.
How can I ensure I can keep the family pet?
If you and your spouse adopt or purchase a pet, you should consider creating a “pet-nup.” A pet-nup would be a part of your prenuptial or postnuptial agreement, and would outline what happens to the pets in the event of a divorce. Understand that it must be part of one of these types of agreements, because pet-nups are not legally binding documents.
You could also outline how you will share custody of your pets in your divorce decree, but be forewarned: once it is in the decree, it is legally binding. If you decide to violate the order you can be held in contempt – and we cannot imagine any New York court being pleased two find two adults in a courtroom arguing over who gets Fido on Saturday nights.
The NYC divorce attorneys at Berkman Bottger Newman & Schein LLP have decades of experience assisting clients with matters of divorce and property division – even when the property tends to lick your face. To schedule a consultation to discuss the effects of the new bill on your divorce, please call us at (212) 466-6015 or fill out our contact form. We maintain offices in Manhattan, Westchester, and Bergen County, NJ.