So, your pet has become a member of your family, complete with holiday wardrobe, special treats and all. For pet lovers, what happens to your pet when you divorce may be a significant issue, as it was for Bill. For non-pet lovers, what happens to your pet may still be a significant issue. For example, where the family pets reside may affect which parent will receive primary physical custody of the children. In a Delaware case from 2002, the divorce court awarded primary physical custody to a father whose home environment offered his children greater physical and mental stability - notably, the children had a dog, two cats and fish there. Martin v Martin, 820 A2d 410; 2002 Del Fam Ct LEXIS 7 (2002).
What can you do if your pets stall your settlement?
If you have children, award the pets to the party retaining primary physical custody. Undoubtedly, your children have grown attached to their pets. Think how overbearing you will appear in court if you insist that Fluffy and Zuzu stay with you, little Fankie and Susie's attachment to them aside. Moreover, pets have an amazing capacity to soothe; they will help your children cope with the divorce process, during and after. The same is true for children commuting between parents. If you share physical custody, consider transporting the pets with the children. Make a game of it. The children can pack an overnight bag, bring a journal to write down what Pinky did at Dad's House, what Pink did at Mom's House, plan activities with the pets, and so forth. Your options are limited to your creativity.
If you do not have children, consider awarding the pets to one party and moving forward. For Bill, this meant purchasing a new pet.
For another client, this meant setting up a pet trust to ensure his ex would have resources to care for his beloved dog and, if not, he would receive them A pet trust is a legally sanctioned arrangement that provides for the care and maintenance of a pet in the event of the owner's death or disability. Under traditional trust and estate law, a pet owner could not establish a trust for a pet because trusts benefit people, not property. (Sorry, pet lovers, but pets are property.) However, by 2009, 42 states had adopted laws allowing trusts for pets. A person called the "settlor" contributes property (usually cash) to the trust for the "trustee" to manage and expend for the pet's benefit. The settlor and the trustee may be the same person, and in most states the trust may continue for the animal's life or for 21 years, whichever comes first. See, e.g., Uniform Trust Code § 408.
Of - and this attorney is a particular fan of this approach, being an adoption advocate - one of you go adopt another pet from the shelter and give that pet a loving home.
Fighting over Fido ain't easy, but, hopefully, these suggestions will make the fight easier for you.