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Traditionally, divorce-court judges determining custody usually rule that any pets in the household will follow the children. But what happens if there are no children?
Increasingly, pets themselves are the subject of custodial disputes in divorce proceedings, according to Kenneth P. Altshuler, a Portland, Maine, divorce attorney who is the current president of the American Academy of Matrimonial Lawyers. In 2006, AAML conducted a survey of its members and found that they had seen a marked increase in pet custody cases since 2001. And based on his own practice and from what he’s hearing from his peers around the country, Altshuler believes it’s become ever more commonplace since then.
Kenneth P. AltshulerOne of the reasons, he says, is the expansion of same-sex marriages, civil unions, and domestic partnerships, which are less apt to involve children and more likely to result in a fight over who gets the pets. But the advent of these new arrangements has also had an impact on how judges decide who gets what when they fall apart.
“We’ve got new fringes that the law hasn’t caught up with,” Altshuler says, “so it’s not hard for judges to think out of the box and get away from traditional ways of thinking. They’re recognizing more and more that pets are part of the family.”
And if animals are now being seen as family members, that means that if a spouse in a divorce proceeding wants to get custody of the pet they must be prepared to make an argument that goes beyond mere ownership.
“It used to be that pets were chattel (property),” Altshuler says. “Just like the living room furniture got divided up, so did pets. There was kind of this sense that they were treated as property, but not like children. But now I’m seeing a trend where pets are being treated as more than property. So my advice to clients and consumers is: You need to show the judge the emotional bond you have with this pet; you have to show that this pet is a child replacement for you, that this is your child. This is not that unusual and judges certainly understand that.”
Like many divorce lawyers, Altshuler has several amusing anecdotes about animal disputes that weren’t funny at all to the spouses and partners involved in them.
One of his favorites involved a husband and wife who battled over who would get custody of a pet python. The woman said that she loved the python and had evidence to prove it in the form of a snapshot with the snake draped around her. However, she was unable to feed the python in the proper fashion—by giving it live mice—and argued that she had friends who did it and would continue to do it.
Altshuler’s client, the husband, contended that this shortcoming proved that he deserved ownership. “He said, ‘What happens if you can’t find someone to feed the python? The python could starve to death,’” Altshuler says.
His client got the python.
Even though couples increasingly end up battling over pet custody, Altshuler says there’s no evidence to suggest that they’re aware of that prospect and including animals in either prenuptial or post-marriage agreements.
“If a client comes in to me for a prenup, that’s one of them the items on my checklist. I’ll ask, ‘Do you have a pet?’ But, for whatever reason, parties don’t seem to be too worked up about pets in prenup agreements or postnup agreements, which I think is a big mistake on their part. I’m guessing it’s because they don’t think the pet’s going to live that long. They think the relationship will outlive the pet.”
When it doesn’t, the fight is on.
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