In certain areas, the law greatly lags behind society. This is true in technology, social media, and pets in divorce actions. In a typical divorce case, the two main disputes concern custody and property distribution. Currently, under the law there are two types of property: real and personal. Real property includes all real estate, and attachments. Personal property covers everything else; including pets.
In cases with children, usually the pets go with the children. In other cases, it isn't so easy.
In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.
Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.
Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.
A growing number of states (30, according to www.animallaw.info) give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.
What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.
How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.
In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.
There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.
Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.
Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.
Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.
So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.
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