By Lee Dryden
Dolan Media Newswires
DETROIT - When judges are overseeing the process of doling out personal property in a divorce, emotions run quite a bit higher when deciding who gets Fido as opposed to a flat-screen television or bookcase.
Animal lovers aren't likely to refer to their pets as possessions, but that's exactly what they are considered by the courts.
A 2014 survey by the American Academy of Matrimonial Lawyers showed an increase in pet custody cases during the previous five years. Dogs were the subject of a wide majority of disputes.
"While pet custody cases are not an everyday occurrence, far too many spouses attempt to initiate these disputes as a negotiating strategy, often believing that they can use the animal as a kind of bargaining chip. This tactic is usually not effective and can come back to 'bite' the antagonist throughout the divorce process." Maria Cognetti, then-president of the AAML, said in a press release. "When it comes to a pet, it is often obvious which of the spouses has the strongest emotional bond."
Although a legislative attempt to set rules for pet custody cases was unsuccessful, courts have several common factors that are applied when determining where a pet will live after a marriage dissolves.
Pets in property disputes
"As a general rule, pets are considered personal property, even though some people may treat them like children, or even better than their children," said Robert E. Kass of Barris, Sott, Denn, & Driker PLLC. "However, they don't have the special status of children for purposes of custody and visitation, though similar concepts can be applied either in negotiating a settlement or if the court is willing to get involved in dealing with custody and visitation of pets."
Jessica Woll of Woll & Woll PC said Michigan courts generally view pets as personal property "or 'chattel' to be precise."
"Michigan is an 'equitable division' state and this approach to the law applies to pets. However, each judge will bring his or her own different bias," she said. "Some judges treat pets as a piece of furniture that should be included with the rest of the parties' property to be divided, while other judges who are animal lovers will give more attention to the best interests of the pet.
"For example, a judge may look at how the pet was cared for historically. Who usually cared for the animal? Who has the time to devote to the animal? Who is best able to pay for the care of the pet? If there is adoption paperwork or the like, whose name is on the documents? As it is with most property division, one party will typically be awarded the pet as part of his or her equitable share of the parties' property and it's usually the party with the clearest claim to the pet."
Kass added, "Does one spouse work long hours, travel a lot, or have an unpredictable schedule, such that the pet would be better off with the spouse who can attend to the pet's needs on a regular schedule?"
Along with considering which spouse is providing care to the pet such as veterinary visits, other factors include incidents of abuse or indifference, which spouse will be living in a pet-friendly environment, the parties' finances and whether there are multiple pets that would be better off in each other's company, Kass said.
Another consideration is whether children are involved, he said.
"It may be that the best interests of the children will be served by giving custody of the pet to the spouse who has custody of the children," Kass said. "The divorce may be hard enough for the kids to handle without losing their favorite pet. The children's psychologist may have a strong opinion on this issue."
Occasionally, a visitation schedule will be implemented, but that is difficult to enforce, Woll said, adding that sometimes animals are split between the parties if there is more than one pet.
Kass added that a consideration is whether continually moving a pet between residences would be unsettling.
In some cases, one spouse may be "using the custody of the pet as a negotiating tool to take advantage of the emotional ties to the pet," Kass said.
Woll had a case where the parties were battling over a purebred Airedale. Her client had to move into an apartment that didn't allow dogs so she had to leave the pet with her husband until other arrangements could be made.
"Her husband, in turn, used this as an argument for him to be awarded the dog, since she 'just left him behind,'" she said. "Fortunately for my client, the dog's lineage and registration with the American Kennel Club were under her name and this largely controlled the final result, along with the fact that she was historically the caregiver for the dog. Therefore, the judge awarded her pet to her."
Pets can be included in a prenuptial or postnuptial agreement, Kass said, adding that visitation and custody can be agreed upon prior to a divorce. There could be conflict on end-of-life decisions regarding a pet, he added.
If a spouse breeds and sells animals, they could be treated like other business assets in a divorce, Kass said.
Changes needed?
In 2008, then-state Rep. Michael Sak introduced a bill to amend how pets are handled in a divorce. The parties would have to list their pets and file a custody agreement with the court if they were able to reach a resolution. A judge would make the decision if the parties could not do so.
The legislation stalled and never became law.
"Many questioned the necessity for such a law on the basis that divorcing couples in Michigan have resolved these issues for years without a specific law," Kass said.
Woll added, "There was a provision in HB 5598 which would authorize a judge to order that neither party should be awarded the animal and that the pet must be surrendered to the Humane Society, which is an absolutely horrible solution. This bill asked more questions than it answered."
Woll highlighted some efforts in other states to "elevate the status of pets."
"For example, in 2012 the California Court of Appeals decided that pets are more than just inanimate objects and should be considered with more care and, in San Francisco, legislation was adopted to redefine a pet owner as a pet 'guardian,'" she said. "Alaska recently passed a fairly comprehensive bill that seeks to ensure that decisions are made based on best interests of pets.
"Obviously, we all want to take care of our pets and consider what is best for them, but incorporating animal custody into the law could open Pandora's box in ways that we may not be able to control."
A California statute enacted in 2014 allows pet owners to seek restraining orders to allow them immediate control and possession of their pet, Kass said.
As for suggestions to provide clarity in divorces involving pets, Woll said "something could be changed to examine the best interest factors for pet custody."
"Although pets are currently included in the personal property category in divorce, there is already a precedent with this type of issue: what is equitable and what is fair," she said. "Why should one party be awarded the pet? Who is listed on the lineage or adoption papers? Who is historically the best able to care for the pet? This is often the party that the pet is most bonded to anyway and to be separated from that person is often traumatic for the animal.
"Any good judge or arbitrator should follow the criteria of who is historically best to care for the pet, just like pet adoption officers will do," she said.
Planning ahead
Along with divorce, another factor for pet owners to consider is what will happen if their pets outlive them.
"Most people haven't addressed their own estate planning, and even among those who have, very few pet owners have considered their pets in their estate planning," Kass said.
Kass co-authored a book on the topic, "Who Will Care When You're Not There? Estate Planning for Pet Owners," with law partner Elizabeth A. Carrie.
He said Carrie "had a German Shepherd and was thinking about what would happen to the dog if something happened to her."
"The dog was 13 years old and had incurred $30,000 of medical expenses over its lifetime. She figured that her parents would probably be willing to take it, if something happened to her, but knew they would not have the funds to pay for its care. She realized she needed a plan, with funding, and backup caregivers."
Kass said the book was published "as a resource for attorneys who want to understand the issues related to estate planning for pet owners, as well as pet owners themselves."
He added, "We have many examples of cases where people either didn't plan for their pet, or planned poorly, and it turned out badly for the pet. In some cases, family members didn't care about the pet and had it euthanized."
Published: Wed, Aug 03, 2016
