According to the American Veterinary Medical Association, as of 2007, roughly 37% of American households include at least one dog, and about 32% include at least one cat. Those of us who own pets often think of them as members of the family. We lavish them with affection, and invest time and money in their health and well-being. In allowing our pets into our hearts, we often forget that we own them, in the truest sense of the word.
When two individuals decide to combine their lives, they bring their pets with them. Many pet owners bring their furry (or feathered, or scaled) friends with them to a marriage, and too often, find themselves in the position of fighting over who gets to keep Fido or Fluffy when that relationship comes to the end. Despite our pets unique position in our lives, they do not hold a unique place in the law—they are property, and owners often find themselves frustrated by the fact that the Court is not willing to invest time and energy into discerning what is in the pet’s best interest when deciding who gets to keep him or her.
In Massachusetts, as with many other states, pets are no different than a car, or a computer, or a book when it comes to a divorce. A judge isn’t empowered to look into what is in the pet’s best interest, so spending time arguing over who took Fido on more walks, or who pointed the laser pointer the way Fluffy likes it best is counterproductive. Further, given a judge’s heavy caseload, which undoubtedly includes families and children in dire situations, it’s unlikely a judge would have the patience to spend time carefully weighing the best interests of your pets. It’s not a matter of being cold-hearted; simply an issue of weighing priorities—and you are unlikely to find a judge who will be willing to prioritize a pet over the safety of small children.
There are, however, benefits to the law’s somewhat archaic view. Namely, because pets are “merely” property, you can decide in advance who will have custody of a four-legged (or two-legged, or no-legged, or finned) friend through a prenuptial or postnuptial agreement. These provisions are legally valid, and can be incorporated into a separation agreement drafted based on these types of marital agreements. Though enforcement of these terms may be difficult, they at least help to establish the expectations of each of the spouses.
So what can you do to protect your non-human best friend?
– If you purchased, rescued, or adopted your pet independently of your spouse, keep track of the paperwork evidencing your ownership of him or her. Remember, your pet is property, so if you have always owned him or her independent of your spouse, you have a good argument that it’s fair to keep him or her.
– License your pet in the name of the person who is listed on the bill of sale/adoption paperwork. As with the above, this is further evidence that you own your pet independent of your spouse.
– If you are not yet married, consider your pet when negotiating a prenuptial agreement. In the alternate, if you are married and considering a postnuptial agreement, your pet can be included there as well.