Who gets the pet after the divorce?
"I have good news," my divorce lawyer told me during our second consultation. Before she told me, she asked me a question: "Are you willing to pay 20,000 crowns for your dog?"
We can barely imagine a similar situation and it sounds like a crazy joke, but more and more people are finding themselves in them. Who gets the family pet after a divorce or separation? From a purely legal perspective, "community property - or property acquired during the marriage - is divided equally." However, an animal is not a thing (and cannot be understood as movable property), so figuratively speaking you cannot even cut it in half. But how do you deal with this if the emotional attachment of both former partners is very strong and they cannot imagine life without a dog or cat together?
"Fox came into our lives during a trip to Serbia in the winter of 2015, and over the course of a couple of years we developed a really deep relationship with her," says the author of this article, "But during the separation we agreed to alternate care quite easily. It should be noted, however, that as with children, frequent changes in environment, people and parenting styles are not the ideal situation for healthy animal development, and although Liska is included in both households with love and care, I have observed occasional changes in her behavior during transitions from one household to the other."
A similar case is described by the owner of Zoe, a Russell Terrier who entered her life with Jim. "Pets are treated just like TVs, furniture and cars," she explains, which meant that in their case, Zoe belonged to Jim just as much as any other possessions he brought into the marriage. "We'd been married four years, thirteen years in total, and regardless of sharing the costs of her upkeep over the course of the marriage - regular vet visits, organic food and treats (including a daily dose of broccoli), a groomer, a walker, even a dog psychiatrist - legally Zoe belonged to Jim. I petitioned the court for joint custody. And while the division of our joint property was relatively simple, as I got the leather bench, Jim got the coffee maker including grinder and grill, and I got the TV at Zoe's place, we were stuck.
This stalemate was rich with irony, because Zoe and Max (the goofy cocker spaniel I brought into our relationship) were our biggest challenge as a couple. We were a blended family that didn't mix well. Early in our relationship, Zoe bit Max badly until he had to go to the emergency vet. I told Jim at the time: "A dog that bites once, bites again. We have to get rid of her." Of course, he didn't like that. When we started couples therapy, our dogs were the main focus. And it didn't take long before we took both dogs to a dog "shrink" who was trying - unsuccessfully - to repair both two-legged and four-legged relationships.
No amount of love seemed to help Zoe overcome her temper. But over the years, especially after Max died, I began to accept her, even with her character flaws. I began to appreciate how she woke up happy every day, ready to greet the world with her prancing gait. I understood how cataracts nearly blinded her and how incontinence shamed her. How could I not love her? I asked for joint custody for two reasons. I grew very attached to Zoe, but I also hoped that sharing the responsibility would help us find a way to stay in each other's lives. Maybe Zoe, who brought us so much marital strife, could also be a lasting bond.
Jim's answer was no. He made it clear that he understood the law and wrote to me, "My lawyer has advised me that Zoe is considered personal property and therefore the decision about her future is mine. So I have decided to take care of Zoe." Then, to make sure I understood, he added: "You can't always have what you want."
Frankly, the law doesn't address any "emotional attachment to the animal", it doesn't care. When dividing marital property, judges don't take into account where your TV wants to live, and are similarly unsentimental about what might be in the best interests of "animal companions."
"There's nothing in the law that tells judges to treat pets any differently than any other type of property we own," noted California Assemblyman Bill Quirk in 2018 when advocating for a change in the law. "However, as the proud owner of a rescued dog, I know that owners view their pets as more than just property. They are part of our family and their care must be considered in divorce proceedings." Thanks to Mr. Quirk, California judges can now take into account the welfare of the animal as well as who provided care for it when drafting custody agreements starting in January. That's how I came to toy with the idea of paying Jim $16,000 for the possibility of joint custody. In the meantime, my legal team had researched the laws of other states and came up with a dollar amount to try to get Jim to agree to joint custody. "I'm sure that will get Jim's attention," she said. "Indeed it will," I thought to myself.
To me, Zoe was priceless, but even so, $16,000 for an eleven-pound geriatric terror seemed too much. Heartbroken, I signed the separation agreement, which listed Zoe among the "electric salt and pepper shaker" and "red bowl" in the inventory of Jim's possessions. Then she was off to live with Jim in a new town.
A few weeks later another email from Jim came, "I'm not suggesting I want to do this, but would you be interested in Zoe full time?" Without missing a beat, I replied, "Yes," which prompted him to reveal that his new townhouse was not suitable for dogs. Although our legal agreement was signed and recorded, I took full custody of Zoe. I understood the consequences of my "win" when Jim wrote to me again and said he would not pay for Zoe's care "because he would never see her again." And neither, it turned out, would I.
I consider myself a lucky man who now spends his days with Zoe. After years of caring for my parents, who both died within months of Jim and my legal separation, I needed that little "terrier" more than ever. She smiles more than she growls, and now two weeks short of seventeen, she plays a daily game of "kill the squirrel" chasing those show rodents in the front yard with every expectation of catching them. So far, the squirrels are winning. In a way, Zoe and I are the winners - we got what's best for us and saved $16,000.
I recently spoke with Cristina Stella, an attorney with the Animal Legal Defense Fund. In our divorce, I belatedly learned the importance of having a prenuptial agreement, which Jim and I skipped. "I don't know if you've ever heard the term 'petnup,'" Ms. Stella told me, "but it's the best way to avoid custody disputes when a relationship breaks down." "And what if that happens?" I asked. Options include sole custody, joint custody, and even pet support (as well as child support).
"Divorce is not for the weak of character, human or canine. I now know how to protect my rights and any four-legged "stuff" should I remarry. How to protect my heart - well, that's another matter," she adds.