Recent studies show that nearly 50% of millennials do not want, or are unsure if they want, human children. But according to a 2020/21 poll by Emma Bedford, Millennials have the highest percentage of pet ownership in the United States (32%), followed by Baby Boomers (27%), and Generation Z (24%). A survey by YPulse found that 76% of Millennials prefer to have pets over children. The American Veterinary Medical Association found that 85-percent of dog owners, and 76-percent of cat owners, consider their pets family.
With pets becoming more and more like children and family in the eyes of owners, this begs the question: how are pets treated in a divorce? For a society engulfed in Instagram and Facebook feeds full of furry friends, the answer may be unsettling. But the good news is that change is in the works.
In much of the country, including Wisconsin, pets are considered property.
In Wisconsin, the court generally treats pets like personal property in a divorce, similar to any other belongings that must be divided between the couple. A view of pets as property rather than a family member means that a court might reasonably order that one person keeps the pet and the other loses their right to see or care for the pet. It also means that little consideration is given to the pet’s well-being or fairness to the pet.
The best way to make sure that your beloved companion is viewed with the care it deserves is to try to reach an agreement with your soon-to-be-ex. As a general rule of thumb, a court will honor agreements reached by the parties, even if the agreements exceed the bounds of what a court might order. For example, while the law in Wisconsin does not provide direction to courts about pet custody arrangements, that does not prevent divorcing pet-parents from reaching an agreement of their own and asking the court to adopt the agreement as an order. The judge still must sign off on the order, but if it is fair and reasonable and the parties agree, a judge is more likely to approve the agreement. This means that if you are your spouse agree, you can include almost any details about where the pet lives, its care, and routine. It may be even be possible to agree to a visitation agreement so that you and your spouse can both have time with the pet post-divorce.
My spouse and I cannot agree on an arrangement. What now?
If the parties are unable to reach agreement related to their pet, there is no other option but to present the issue to the judge. In Wisconsin, most likely, this means the judge will view the pet as a piece of property and award it to one party or the other based on proof of ownership. An ownership analysis will likely focus on facts such as who bought or adopted the pet as demonstrated by adoption or purchase papers; whether the pet was obtained prior to the marriage and by whom; who financially supported the pet during the marriage; and whose name is on the pet’s records including with the vet, microchip, license and registration, and insurance documents. Worst case, the judge could order that the pet be sold and proceeds shared between the parties.
While the law in most states does not require any specific consideration of the pet’s best interest, it does not automatically mean that a judge will not take that into account when awarding ownership of the pet. Some courts are beginning to be more receptive to arguments about a pet’s best interest. There are a few factors that a judge may be willing to consider including: who provided most of the pet’s care or spent the most time with the pet; does one party have more time or resources to expend on the pet; and will one party have the children more than the other, as often the children may have the greatest attachment to the pet. Whether and how much to consider these factors is likely entirely up to the judge. Risk of an unknown outcome is significant incentive for parties to reach agreement.
Nipping the problem in the bud.
For a pet parent being extra proactive, s/he could seek a legally binding prenuptial or postnuptial agreement specifying who keeps the pet in event of a divorce. Generally speaking, existence of such document would prevent any argument or dispute at the time of divorce.
There is progress towards a different view of pets in divorce.
While Wisconsin remains one of the vast majority of states that treat pets as property, a small handful of states currently have laws that take a more personalized approach to pet custody.
Alaska became the first American state in January 2017 to enact custody legislation specifically for pets, allowing courts to take an animal’s well-being into account during divorce proceedings. A similar law took effect in California on January 1, 2019. A spouse can now petition the court for sole or joint custody of the pet, and the custody order should include terms related to “prevention of acts of harm or cruelty” and “the provision of food, water, veterinary care and safe and protected shelter.” Texas, Vermont, Rhode Island, New York, Maine, New Hampshire, Washington D.C., and Illinois also currently have specific laws related to issues of pet custody in divorce.
Wisconsinites should not lose hope. In 2007, the Wisconsin Legislature presented a bill proposing specific statutory guidance regarding placement of pets in divorce. Unfortunately, the legislation never passed. But that Wisconsin was ahead of the curve in even considering such legislation, and the fact that other states have passed such laws in the last six years, is reassuring.
The family law attorneys here at Hawks Quindel understand that pets are important members of the family. We will help you understand your rights in the divorce, including to your pets, and help achieve the best possible outcome for you and your furry friend.
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