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Advice on Divorce: Custody Laws When Dealing With Pets

Requests for advice on divorce typically start with the heavy hitters (child custody, division of assets, etc.), but not much further down the list are questions about the family pet.

Though you probably treat your pet with the same love as you would a person, in most states pets are regarded as property. (Read our related divorce article “Who Gets The Family Pet?”)

If a pet was acquired before the marriage they remain the property of the spouse who purchased him/her.

Pennsylvania is one such state that sees a dog more or less as a piece of furniture; the state does not acknowledge shared custody agreements because those arrangements are not enforceable for property.

However, not all states see family pets as just another piece of property sprinkled in amidst a laundry list of furniture.

In 2009 there was a landmark court decision in New Jersey, according to Karen Grayson-Rodgers, co-author of “Untying the Knot.”

Pets are still seen as property by the New Jersey court system, however the court decided that pets are “a unique form of property that elicit sentimental attachment and have a special subjective value.”

In order to select a pet parent or allotment of shared custody, the ruling takes into account which party provides the majority of the pet’s basic needs, vet visits and social interactions.

“Unlike personal property items like a painting or even the house, you cannot simply have one spouse keep the ferret and pay the other its purchase price,” Grayson-Rodgers said.

What about keeping things 50-50? Splitting pet time and costs in half requires both spouses to be equally responsible for care.

However, some custody arrangements call for all medical care costs as the result of an accident to be incurred by whoever had the pet in his/her care at that time.

Nancy Fagan, the owner of The Divorce Help Clinic LLC in San Diego, regularly advises clients through mediation of pet issues. The agreements are not just informal arrangements, Fagan said.

“We take their issues seriously in terms of adding language to the marital settlement agreement that gets filed at the court with their divorce paperwork,” she said.

Not all are in agreement that custody of the pet should be split 50-50. When asked about separation advice for men, Susan Elliott, the author of “Getting Past Your Breakup: How to Turn a Devastating Loss Into the Best Thing That Ever Happened to You,” recommends dropping a shared custody arrangement altogether.

“It’s not good or healthy to have visitation of pets after divorce,” Elliott said. “Most times it just prolongs the agony of moving apart and building a new and separate life.”

Not only is this in regards to the human relationship, but the pet’s best interest as well. Pets are unaware of what is really going on and changes to their routine and environment can lead to destructive behavior.

Depression and anxiety are real conditions that affect approximately 15% of dogs, which is why the pet pharmaceutical industry has burgeoned with “doggie Prozac.”

If you have to give up your beloved pet, you may consider setting up a pet trust.

A pet trust is a legally sanctioned arrangement that provides for the care and maintenance of a pet in the event of the owner’s death or disability. At least 42 states have adopted laws allowing trusts for pets.

A person called the “settlor” contributes property (usually cash) to the trust for the “trustee” to manage and expend for the pet’s benefit.

The settlor and the trustee may be the same person, and in most states the trust may continue for the animal’s life or for 21 years, whichever comes first. See, e.g., Uniform Trust Code § 408.

Tara Lynne Groth is a full-time freelance writer residing in Cary, North Carolina. Her work has appeared in places such as GO (AirTran Airways’ in-flight magazine), the Providence Journal and Chesapeake Family. Learn more about Tara by visiting her website www.taralynnegroth.com.