If your pet is family to you, then there are 7 things you need to know about pets and divorce.
Perhaps the single most important thing to know is that while your pet is a member of your family, the law in most places of the U.S. treats your pet as property. That means that if you and your STBX can’t come to an agreement on sharing your pet and a judge has to decide what happens to Fido, then the judge is going to be bound by the same rules that apply to your car, your lawn mover or the camera equipment rather than parenting guidelines.
This often difficult topic gets harder when children see the pets as theirs and want the pets to move with them between their two parents’ homes.
And, of course, because this is divorce the pets can become part of the power and control, manipulation and leverage.
The good news is you can be creative and craft a sharing agreement that works for everyone. Joining me for this Conversation About Divorce is Attorney Jessica Leischner with the Washington D.C. law firm Wade, Grimes, Friedman, Meinken, Leischner. Listen in below (email subscribers click here) or keep reading for a synopsis.
Pets Are Property
As I mentioned above, the law generally still treats pets as property. This is a good example of a situation where the law is lagging behind practice and custom.
What this means is that in the majority of cases, it is best for you and your STBX to reach an agreement on the pets outside the court. While the most common pets over which divorcing couples disagree are dogs, no pet is immune.
You know your pets, you know what they need and you know what will work for them. It sounds a lot like the advice we give to parents and it’s true. Your pets are best served by you putting their needs before your own because there is significant risk in letting a judge decide.
If you can’t reach an agreement, then a court will look at where the pet originated. “Almost always, a judge will order a pet to go with who had the pet before the marriage regardless of who took care of the pet or who the pet bonded with the most,” said Leischner.
Now if you received the pet as a gift from your sister, then Leischner says the pet is your separate property but if your spouse gave you the pet, then the pet is considered marital property. In this case, a judge would look to see who has been taking care of the pet and who would be the better caregiver. It’s not always as simple as that because as any pet owner knows, pets come with expenses. More on that later.
Sharing Pets Keeps You Connected
If you’re hoping to share your pet, maybe with the pet moving between you and your STBX, or one of you being a pet sitter or even you just having access to the walk and play with the pet, then Leischner urges you to recognize that this will keep you connected with your STBX and it may make it harder for you to move forward emotionally.
If you and your STBX are going to be co-parenting then you will be connected through that anyway and the pet make little difference but without children, it may be better for one of you to give up the pet.
“Are you holding on to the pet because you’re holding on to the relationship?” asks Leischner. “Is that healthy for you?”
Should You Delay Your Divorce?
Pets can be used in power and control tactics with one spouse threatening the other spouse that if they leave the marriage, they’ll never see their pet again. For older pets or pets with a chronic health condition, there’s also fear that the disruption from the end of the marriage might harm the pet. So not surprisingly, people do delay divorce waiting for a time when the pet problem has solved itself.
Leischner encourages people to instead brainstorm an agreement even if it isn’t what a court would order. “What it usually comes down is saying ‘I don’t care so much about this as long as I get to keep the pet.'” said Leischner.
Create A Written Agreement
Verbal agreements are hard to prove so Leischner says absolutely put in writing any agreement you do make with your STBX about your pets. While such agreements don’t need to be filed with the courts, you would want to file it, if you want the court to be able to enforce the agreement as part of the divorce.
Given that the law does still see pets as property, any agreement you come up with is likely to be vastly different from what a court would order. Nevertheless, the chance of a court rejecting your agreement is slim.
“I’ve never personally seen a court reject an agreement related to pets,” said Leischner. “The court wants you to come to an agreement. They don’t want to have to make a decision.”
The purpose of having an agreement is so that each party knows what the expectations and obligations are so it’s worth spending time thinking about the various ‘what if’ scenarios that might come up. But don’t go overboard. Down the road, you and your STBX can still agree to do something other than what is stated in the agreement. The agreement is a safety net for the times when you can’t come to agreement.
Who Makes The Decisions?
You’re going to want your agreement to cover who makes decisions about the pet. Leischner says this typically centers around medical treatment and what happens if one party no longer wants the pet.
If the pet is going to be living with one party, then an agreement might state, that if that party decides at any point that they can no longer take care of the pet, the other party gets the right to take ownership before the pet is offered for adoption or given away to someone else.
For medical decisions, Leischner recommends that the agreement gives one party final decision-making authority. The agreement can still obligate the decision-maker to consult with the other party so there is still a discussion. Alternatively, you could make the primary veterinarian the tie-breaker. This is probably something you’d want to discuss with your vet first before filing the written agreement with the court.
The other aspect to medical decision-making is the cost associated with treatments and no one wants to be in a situation where they are forced to pay for a treatment that they don’t support. For this reason, Leischner suggests putting a provision in the agreement that says that if a party disagrees with a treatment then they are not obligated to share in that cost.
Spell Out The Expense Sharing
Your agreement should identify the expenses that will be shared and the percentage in which they will be shared.
Leischner says pet food is not usually a shared expense but vaccines, licenses, pet sitters and boarding costs can be. Pet sitting and boarding costs often arise where one party travels frequently and the other party may not be available to cover. It’ll be important to cover the specific circumstances under which pet sitting expenses will or will not be shared.
Sharing the agreed expenses 50/50 may seem equitable if you’re sharing the pet equally or if your incomes are comparable but if your STBX earns significantly more than you, then you may want to negotiate a different percentage share, such as 40/60 or 30/70.
What Does Sharing Look Like?
Although it might not seem like it, an arrangement where the pet moves between your two homes is probably the simplest in terms of access.
An arrangement where your STBX can come and play with the pet or walk the dog, perhaps because dogs are not permitted in their new rental home, means figuring out access. Will your STBX be free to come by any time or at specific times? Will they have access to your home? Do you want them in your home when you’re not there? What happens if they want to come at a time that isn’t convenient to you?
If you’re making an agreement whereby your STBX will take care of your pet when you’re away, how are you going to feel about always notifying your ex about your travel plans?
And just as with kids, sharing a pet means you and your STBX are going to have to communicate. Ideally, you’ll be on the same page with your approach to exercise and discipline. If you’re not, and you know this now, then that’s a huge red flag for how well this sharing arrangement is likely to work.
You need to take crafting your pet sharing agreement every bit as seriously as you would a parenting plan. “You have to identify what could become problems so they won’t become problems down the line,” said Leischner. Spelling out the resolution to potential problems in your agreement, could save you from going to court later.
My guest for this Conversation About Divorce is Attorney Jessica Leischner with the Washington D.C. law firm Wade, Grimes, Friedman, Meinken, Leischner. Check out their website for some free divorce guides on topics such as mediation, collaborative divorce and divorce for military members.