Divorce Just who will be getting the family pet

August 9, 2010
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Many of us treat our pets like family members. We confide in them, laugh with them and lavish them with expensive toys. We spend money on pet boarding kennels touting animal luxuries and we make sure they have their annual check-ups, even while neglecting our own.

However, despite our efforts to ensure their continual well-being, many of us fail to take any steps to protect these “family members” in the event of a divorce.

Division of property

Michigan law allows courts to treat family pets as property in divorce proceedings. In Michigan, property acquired during a marriage must be divided in a fair and equitable manner. Thus, a judge can assign a monetary value to a family pet and distribute it along with other household assets.

Is a DVD player a fair trade for the dog? Probably not. What about the family home? Indeed, a recent poll reveals that most people would not trade their companion animal for a million dollars.

But it shouldn’t be necessary to give up the shirt on your back if you take steps to ensure pet custody before the divorce filing.

Establish separate ownership

Michigan law requires a court to determine which assets are “separate property” and which are “marital property.” Property owned before the marriage is considered “separate property” and is generally returned to the original owner. Gifted and inherited property also often is treated as “separate property” that should not be divided as part of the marital estate.

Therefore, establishing yourself as the "pre-marital" or "gifted" owner of a family pet will strengthen your ability to retain ownership. Pre-marital records listing you as the pet’s owner, such as licensing, veterinary records or boarding paperwork, clearly strengthen your position.

But, what if you cannot establish separate ownership?

Take or retain possession

Ever heard the saying “possession is nine-tenths of the law”?

Oftentimes, who has actual possession of the companion animal at the time of the divorce is the single most important factor for determining who will be granted legal custody.

For example, in the Indiana case of Akers v. Sellers, the court announced “there is no reason shown why possession should not accompany ownership,” despite believing that the non-possessory party would be the better owner.

Establish yourself as the primary guardian

Courts may also consider who appears to be the primary guardian in deciding who will be awarded a pet. You can establish yourself as the primary guardian by taking charge of all daily care for the animal — feeding, walking, bathing, training, medical issues, etc.

Another important step is to set up a paper trail that will support your claim for custody. Pay for all daily care expenses with your personal funds. Keep your receipts. Register the pet in your name and designate yourself as the “owner” on all forms, including vet records.

Creative contracting

A contract, such as a prenuptial agreement (or "prepuptial" for parties who do not intend to marry) can also help avoid the heartache of fighting over pet custody. Important issues to cover in any pet custody contract include: visitation rights, "petimony," and any limitations on transfer of the animal.

Pet custody contracts are sprouting up across the U.S. Although the enforceability of any contract cannot be guaranteed, pet contracts can help resolve a fight for custody.

Changing standards

In some states, the determination of pet custody is evolving to mirror standards used in determining custody of children. Determination of the “best interests of the child,” and thus custody, often involves the evaluation and consideration of numerous factors. Most of these factors — including emotional ties and the health of the parties — can be used as a model in deciding the best interests of a companion animal.

As the "best interests" test becomes more widely accepted and the notion of pets as "property" fades into the background, parties may lose some of the benefits of the property notion in attempting to preemptively secure custody of a companion animal. If this trend spreads to Michigan, it will become more important to establish what is in the best interest of the pet rather than focusing on the priority of property ownership.

More households now have pets than have children. Because the treatment of pets in a divorce is unpredictable, owners are advised to take many of the above-mentioned steps in an attempt to help ensure pet custody.

Persons concerned about guaranteeing the continued custody of their companion animals should seek legal counsel for specific, fact-based advice.

Emily Hoort, who attends Harvard Law School, is a summer associate with the law firm of Varnum LLP.

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