Many years ago I had a divorce client with a unique request. We had been negotiating a settlement agreement with her husband and his attorney for weeks. We were on the brink of a complete settlement. But to my client, something was missing. She wanted visitation with the parties’ dog, and she wanted the visitation schedule stipulated in her agreement. In the end, that’s exactly what we did, the case settled and the parties were divorced. We added a provision in the parties’ marital settlement agreement which granted my client visitation with the dog every other weekend. How enforceable that provision might have been had my client’s ex-husband objected to it years later is certainly a question, but I never heard from my client again and assume all went well. She was happy, her ex-husband was happy, and I can only assume the dog was happy not to lose either of his owners. In another difficult matter, we worked all day at the court house trying to settle a divorce case. There were complex financial issues that needed to be resolved and while we had made some progress, we were not getting it done. At one point, my client told me to demand that he keep the dog. This was an issue we had never discussed. You want the dog I asked? Yes he said. Tell her and her lawyer I want the dog. That’s exactly what I did. I walked into the room and said “he wants the dog”, to which I will never forget the howling screams and tears from my client’s wife. “He wants the dog? How could he do this to me?” Within minutes the case settled. The remaining financial issue was resolved and in exchange my client gave up his request for the dog. The parties were immediately divorced.

According to the National Pet Owners Survey conducted by the American Pet Products Association, approximately 68% of U.S. households own a pet, and most of those households own a dog or cat. Thus it is no surprise that many divorcing couples will have to deal with who keeps the pets. On January 17, 2017, Alaska became the first state to enact pet custody legislation. The statute requires Courts to take into consideration “the well-being of the animal” when determining ownership or joint ownership of pets upon divorce. Ironically, the concept seems somewhat akin to the “best interests of the child” standard courts use when determining and awarding custody of minor children, Illinois soon followed Alaska’s lead by enacting its own pet custody legislation. Illinois’ statute also requires the Court to take into consideration “the well-being of the companion animal” when allocating “sole or joint ownership of and responsibility for a companion animal of the parties.” Most recently, California amended its Family Code and effective January 1, 2019, Courts may award sole or joint ownership of a pet “taking into consideration the care of the pet animals”. (In a 2002 California case, prior to the enactment of the California Family Code, a couple spent over $200,000 in legal fees on a three day divorce trial, which involved arguments over custody of their dog, Gigi.). What these statutes and cases show is that at least in some states, courts have legally elevated the status of pets when dividing property upon divorce. They are not just physical property (such as a house or car). But they are often considered by owners to be a member of the family and their significance should not be diminished within the divorce context.

New Jersey has traditionally treated animals as property, and we have not enacted pet legislation as described above. Nevertheless, the New Jersey Appellate Division has recognized that pets have “special subjective value to their owners.” In one New Jersey case, the Appellate Division concluded that when litigant’s each demand custody of the family pet, and one party asserts the existence of an oral agreement on the subject, the agreement may be specifically enforced, when appropriate. (The case involved an engaged couple who lived in a home they owned together with a dog they purchased.) In another non-divorce case, the Appellate Division noted that a “household pet is not like other fungible or disposable property, intended solely to be used and replaced after it has outlived its usefulness.” (This case involved the determination of damages after defendants’ dog trespassed onto plaintiff’s property and attacked and severely injured plaintiff’s dog.) In another non-divorce case, the New Jersey Supreme Court held that a pet owner could not recover for emotional distress caused by observing the traumatic death of her pet. (The Court noted that although pets are not “merely property”, that alone could not support a new cause of action.)

There is no doubt that pets have a special place in our hearts. To pet owners, they are not merely property and upon divorce, owners often do not view their pets the same as other property which may be subject to equitable distribution. The relationship we form with our pets are substantial, loving, and akin to a family member. The loss of a pet can be traumatizing. At the offices of Pamela M. Copeland, Esq., Counsellors at Law, we understand the significance of pets to our clients and will work with you to help ensure that you continue to have that special relationship with your pet upon divorce, if that is what you desire. With over 60 years of combined experience dealing with divorce cases, we stand ready to assist and guide you through your divorce with both strength, knowledge, and compassion.