Jim and Kelly decided to call it quits on their marriage after only three years. They believed their divorce would be simple. They had some property to divide, but at least they didn’t have to worry about fighting over custody and visitation of children. Unfortunately, when they sat down to hash things out, they realized that they did have someone to fight over, after all—their beloved pets.
Bella, a cute little female tortoiseshell cat, wandered into their ground floor condo as a scared stray kitten during the first year of their marriage and never left. The following year they adopted Domino, a two-year-old black and white rescue mini-poodle. Both Kelly and Jim were attached to their pets and wanted to keep them.
What were they to do? What was the law in New Jersey about pets and custody?
The couple was already planning to go to mediation to resolve a dispute over dividing the value of their condo. They asked their mediator how to approach the issue of pet custody, and this is what she told them:
Pets as Special Value Property in Divorce
Legally, courts treat pets as property. Many couples are understandably upset to hear this. Pets are treasured companions, after all. It doesn’t seem right to most owners to treat them like pieces of furniture and just assign them a value and put them into the balance sheet.
A few states have statutes that address the special nature of pets. For example, Alaska and Illinois have statutes requiring courts to consider the well-being of pets when assigning ownership. California has a new statute that requires courts to take into consideration a pet’s “care.” These states also explicitly provide that a court can assign either sole or joint ownership of pets acquired during a marriage.
New Jersey does not have a statute addressing pets in divorce, and New Jersey courts have declined to attempt to discern an animal’s “best interests” the way they do with children. The rationale is that the perspective of a pet is likely to be impossible to evaluate. (Houseman v. Dare, 966 A. 2d 24 (NJ App.Div. 2009). New Jersey does, however, allow a court to treat items of property that carry special subjective emotional value, including pets, somewhat differently than other property. In such cases, the law recognizes that the cash value of the property may be inadequate compensation as compared with an award of the property itself. A court can therefore examine the facts establishing special value, and in an appropriate case, assign property to the party with the greater emotional attachment. Case law also establishes that a court can award joint ownership of a pet to separating “pet parents.” The court can order parties to alternate keeping the pet for specified periods of time. (Houseman v. Dare (NJ App. Div. 2010).
Considering Joint or Sole Ownership of Pets
The mediator told Kelly and Jim that if they wanted to pursue a “shared parenting” arrangement for their pets, they could go ahead and write up an agreement. She also informed them, however, that a court wouldn’t get involved in enforcing pet visitation. If they don’t think they can stick to an agreement, it would probably be better to choose one owner. If they can’t agree on ownership, evidence that one of them is more attached to the pet would be relevant. This might include things like investment of more time with the pet, or more care for the pet—feeding the pet, walking the pet, taking the pet to the vet, etc. The mediator suggested they start off with a discussion about these facts.
Negotiating “Pet Custody”
Kelly immediately stated that she should have sole ownership of Bella. She reminded Jim that he had protested mightily when she wanted to keep the stray kitten. She always took the cat to the vet on her own. For at least the first year, Jim hadn’t fed the cat or paid much attention to it. All he did was complain about its shedding and its claws.
Jim grudgingly agreed that Kelly was right. “I love her now too though,” he added, “and I do take care of her now, so I don’t think you should hold that against me. Also, if you are taking Bella, then I should get Domino. I’ve been involved with him since before the adoption.”
“That’s true,” Kelly responded, “but not more involved than me.” To back up her case, she listed everything she had done for Domino over the past two years.
Jim thought about this. Finally, he said, “I think we should try joint ownership of Domino. After all, we plan to keep living near each other. And you know how hard it is to go anywhere—even just away for the weekend—when you own a dog.
Eventually, Kelly agreed. She also offered to let Jim keep the cat sometimes. “I don’t want to have to transfer her back and forth every week though. She hates the car, and it will be enough of a hassle just to try this with Domino.”
They wrote up an agreement to transfer Domino between them every Sunday night and to stay flexible when either of them needed to make adjustments. They also agreed to split vet costs and grooming costs going forward.
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