Family Law: Who Has the Right to Keep Fluffy After the Divorce?
Thursday, November 1, 2018
John P. Paone, Jr., Esq. and Victoria E. Paone, Esq, The Two River Times
Americans have a love affair with pets. According to a recent survey, “three-fourths of Americans in their 30s have dogs, while 51 percent have cats.” It is not uncommon for people to spend thousands of dollars per year on pet clothing/accessories, food, photographs, medicine and the like. But what happens to “Fluffy” when parties go through a divorce?
Under the common law, pets were treated as chattel-put another way-just a typical piece of property to be distributed like an automobile or a piano. In today’s world, however, there is a growing consensus that pets are more like family members and less like property. New Jersey courts have mirrored this sentiment and the leading case on this issue demonstrates that disputes over animals during divorce litigation can no longer be resolved by using basic property principles. In a case decided by the New Jersey Appellate Division, the court held that reimbursing a party for a dog’s monetary value (i.e. what you paid for the animal) is not an adequate remedy for purposes of compensating a party for the loss of the “special value” that some pets hold to their owners. That’s right, the court decided that money cannot resolve all problems even in the context of divorce litigation!
This case further stands for the proposition that courts can and should determine which party has a “sincere” interest in possession of the pet and which party is merely asserting an interest in the pet “out of greed, ill-will or other sentiment or motive similarly unworthy of protection in a court of equity.” In determining whether a party or whether both parties have a true and equal interest in their pets, the court directs that focus should be placed on establishing “the facts and circumstances which endow the chattel with special…value.”
Most commonly, the court will consider testimony and other proofs from parties demonstrating which party acts as the primary caretaker of the pet. Meaning, the court can contemplate who “potty trained” the animal, takes the animal to medical and grooming appointments, feeds and bathes the animal, etc. In addition, the court can consider whether a party had possession of the animal prior to the marriage. Furthermore, the court can examine where the children of the marriage primarily reside and deem whether it is in their “best interest” to enjoy the animal’s companionship at their primary place of residence.
Less compelling factors that a court might also consider when determining possession of a pet is the party who is the title owner of the animal and if a certain party made the preliminary investigations or took the initial steps to acquire the pet. At this time in New Jersey, the test is not what is in the “best interest” of the pet. However, that may soon change based upon experiences in other jurisdictions.
On September 27, 2018, the Governor of California, Jerry Brown, signed into law Assembly Bill 2274 which provides for the courts to “assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal” in the context of a divorce case. Considering the “care” of a pet is akin to considering the “best interest” of a child when determining custody. Assemblyman Bill Quirk, who introduced the law, said “it’s time family pets received the status they deserve — family members.” This law takes effect January 1, 2019.
It remains to be seen how New Jersey law will develop over the next few years regarding this very important issue of pet custody in divorce cases. Although the interpretation of pets as more than basic “chattel” is a fairly recent development in the law, it would not be surprising should New Jersey go the way of California and adopt a standard akin to that used for deciding child custody. In the interim, pet owners who are about to go through a divorce should consult with an attorney about how to pursue legal rights and remedies regarding custody and possession of Fluffy in a matrimonial action.