But Who Gets Fido?
According to Louis Sabin, “No matter how little money and how few possessions you own, having a dog makes you rich.” As more and more people adopt this thinking, state laws begin to catch up with the rest of us.
The 2017-2018 edition of the Pet Ownership and Demographics Sourcebook, the most comprehensive and authoritative source of data on how many Americans are owned by pets, found that nearly 57 percent of all U.S. households included a pet at the end of 2016. 38 percent of these were canine households — the highest rate of dog ownership since the American Veterinary Medical Association began measuring it in 1982. Cats were next most popular, found in 25 percent of U.S. homes.
But more people than ever now own more exotic pets, too, such as ferrets, rabbits, hamsters, guinea pigs, gerbils, turtles, snakes, lizards, poultry, livestock, and amphibians. It’s no wonder then that state legislatures are considering changing the rules on how pets should be treated when a household is restructured by the dissolution of marriage.
Courts Agree – Pets Are People, Too
California, Alaska, and Illinois have recently adopted innovative pet custody laws that allow divorce judges to consider the best interests of the family pet rather than treating him, as they have in the past, as a piece of inanimate personal property. As society shows a growing interest in protecting pets and treating them the same as other family members, you should expect that other states will adopt similar laws over the next decade.
Such laws will likely resemble child timesharing laws that require judges to consider a series of factors in determining how much time each parent should spend with his or her children post-divorce. Regarding pet custody, such factors are likely to include which spouse cared more during the marriage for the animal’s everyday needs, such as feeding, exercising, training, walking, and cleaning up after him. The judge may consider which party’s home better meets the pet’s needs. For example, if the pet is a large dog, the judge may award him to the party with the large backyard. The judge may consider which party has more time to spend with the pet and who has proven to actually spend that time with him. The judge may even consider which party is more likely to allow the other to continue to enjoy a relationship with the animal.
Until Then, If You Consider Fido Family, Stay Out of Court
As in many areas of family law, the law may say one thing about how your four-legged family member should be treated in a divorce, but your family will know better. That’s why, even though pets still have no rights in Florida, I often see pet custody arrangements included in their agreements when spouses have chosen some form of alternative dispute resolution over litigation. When spouses can work out their agreements outside the courtroom, they can be creative, including provisions regarding the care of the family pet that judges in litigated cases cannot order in the vast majority of states.
Dogs Want to be Treated like Children, Too
I’ll never forget the divorce I mediated in which the spouses had no children, but they both loved their dogs dearly. While they had many expensive assets over which to argue, the most emotional component of the divorce was determining who would care for their canines after they separated. Ultimately, they agreed that the dogs would stay home with the wife, in part because the dogs were comfortable where they had grown up, and the husband was moving into an apartment. But the husband was to enjoy frequent visitation with them, and “the first right of refusal” to care for them when his former wife traveled, staying in the marital home with them until she returned.
When I checked back with this couple a year later, they were still happy with this resolution; it was working better than they could have imagined. But this arrangement would not have been possible if the parties had litigated in Florida.
Another couple retained me, not because they were having marital difficulties, but because they had just become aware that Florida had no pet timesharing statute. They employed me to draft their post-nuptial agreement, providing that, in the event of their (unlikely) divorce, the wife would continue to care for their eight white rescued cats (and/or their successors), while the husband would pay pet support and enjoy visitation rights.
If you are divorcing, if your pets are members of your family, and if you live in a state that does not have these laws, it is even more important that you choose alternative dispute resolution over litigation so that you can protect ALL of your cherished loved ones.
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About this week’s author, Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.