Divorce and the dog: What happens when both of you want to keep your beloved pet? Divorce attorney, Sylvia Costantino guest posts on this sensitive and very significant divorce issue, offering an understanding of dog custody issues and tips to maximize your chances of ending up with your dog.
Fighting Over Fido: Custody Disputes Over Pets by Sylvia S. Costantino
We all love our pets and think of them as family members. In fact, how many of us refer to our dog as our “baby” and go out of our way to bask in that unconditional love they give us? Yet, when it comes to divorce, the deep personal bond that we have with our pets is not recognized by the Family Court in perhaps the way that we think it should be.
In New Jersey, there is no “best interest” standard for pets; which is the standard used in child custody cases. While pets are still treated as “property” in a divorce, our courts now recognize that pets may have a “special subjective value” and should be treated differently than other types of property.
As it pertains to most marital assets in a divorce, if the parties cannot agree on how to divide an asset, the court will likely order it sold and the proceeds divided. However, a monetary value cannot be assigned to a beloved pet like you can to another piece of property, such as a dining room table. Pet owners who do not get their pet in the divorce are not going to be satisfied with money or simply buying a new one. Pet custody is a growing area of concern not just in this state but across the nation. So where does New Jersey stand in all of this?
In 2009, the landmark case of Houseman v. Dare sparked a positive shift away from the traditional treatment of pets as just “property” to recognition that pets may have “special subjective value” such that a forced sale or monetary compensation will be inadequate. The Houseman case involved an engaged couple and their pedigree dog, Dexter. When the couple split, the woman asked the man if she could have Dexter and he agreed. Later, when the woman left the dog with the man while she went on vacation, he refused to return the dog upon her return. The trial court judge viewed Dexter as personal property and granted possession of the dog to the man (because the dog was in his possession at the time) and awarded monetary compensation to the woman. On appeal, the Appellate Division held that specific performance was an available remedy for the oral agreement. The case was remanded for further proceedings, and ultimately the trial court put a joint possession schedule in place, whereby each party would enjoy Dexter for five-week stretches at a time. During the time that Dexter was with either party, they would absorb all costs associated with his care. The trial court again cautioned that pets are still property and that “the best interest of a child standard” would not apply to a pet custody case.
The Appellate Division’s recognition in Houseman that the special and unique value of a pet is not easily determined or simply divided, paved the way for our Superior Court judges to set up joint possession arrangements for pets.
In deciding the fate of your pet after divorce, the court may consider evidence such as which party cared for the pet, walked the pet, trained the pet, bought toys for it, and the degree of significance of the pet to each of the parties. If there are children born of the marriage, this would likely be a significant factor. Make sure that all paperwork for the pet is in order, including your name being on vet and ownership records. Above all, try to be compassionate. Just as much as you love your pet, your spouse likely has a close attachment as well.
If you and your former significant other are unable to agree on the possession of the family pet, please contact me today to discuss the rights and remedies available to you under this evolving area of family law.
Sylvia Costantino is a New Jersey based divorce and family law attorney. A graduate of Rutgers Law School, Costantino is certified by the Supreme Court of the State of New Jersey as a Matrimonial Law Attorney, with bar admissions in both New Jersey and New York. To contact Sylvia or learn more, visit her firm’s website.