It’s National Take Your Dog to Work Day, so what better time to answer one of the most commonly asked questions in divorce:
Who gets custody of the family pet?
Pets as property in divorce
Your dog may truly be your best friend. But when spouses separate or divorce in New Jersey, the law considers pets to be property that will need to be divided and assigned — like all marital property. There is technically no “pet custody” law in New Jersey.
But this doesn’t necessarily mean that determining pet ownership involves the same process as deciding who gets the living room furniture or flatscreen TV. The courts are generally compassionate about emotional ties that form between pets and their “people” — both adults and children — and will take these attachments into consideration.
For example, Passaic County Judge Ernest M. Caposela has been quoted as saying that in some divorce matters, “What’s in the best interest of the child may include custody of the pet.” It’s doubtful that a judge would ever voice this same opinion about a dining room set!
The “Special Subjective Value of Pets”
When decisions were made about pet ownership in divorce in the past, generally one spouse was awarded the pet and the other spouse received some form of monetary compensation. This is typically still the most common practice of dividing pet ownership, but the courts are also starting to recognize other options, thanks to the appeals court ruling in Houseman v. Dare.
In this 2009 ruling, pets for the first time were recognized as an “extraordinary class of property with ‘special subjective value’ for which monetary compensation may not be adequate.” This expanded definition has opened even more opportunities for creative court solutions for pets.
In the remanded Houseman case, for example, the judge granted the parties alternating five-week visits with the dog. However, the court made specific mention of the fact that Dexter was still considered “property” so the judge could not award “custody” of Dexter to either party. He called his decision “alternating possession” of the property.
Mediation is for the (Pet) Birds
All of the above concerns how pets are treated in the New Jersey courts during divorce litigation. When couples opt for private divorce mediation to resolve the issues of their divorce, there is greater opportunity and flexibility to create some kind of “pet custody” arrangement that you both find agreeable.
Making your case for pet ownership
If you absolutely, positively can’t bear the thought of being without your pet for any length of time, then you’ll need to make the case that the animal belongs with you and you only. Documenting the nature of your time with your pet is probably the best way to do this — that is, detailing how often you and your dog play in the park together, or the way your cat sits on your feet while you’re working, can be helpful.
Your animal’s wishes may also be a factor! If you can show video clips or get eyewitness testimony to show that the animal is more attached to you than to your spouse, the judge may consider that evidence in his or her decision.
If you have questions about what could happen to your family pets in divorce, please schedule a confidential consultation with one our skilled family law attorneys to discuss your specific situation. Call us at 888-888-0919 or please click the button below. We love our fur babies too and can help you explore your best options for a continued loving relationship with your pet!