You Have Pets, But Who Gets Them in The Divorce?
Paul had not shed a single tear as the process of his divorce churned on. Then, his ex-wife hit him where it really hurt; she took the 59-year-old’s dogs and told him he could no longer see them. It was torture for Paul, and he broke down and wept.
Paul had no children, and he battled for two long years in family court for custody of the two dogs – Marox and Winnie. His ex-wife Diane loved the dogs just as intensely. She refused to yield.
After more than $15,000 in legal fees and fighting his way up to the state supreme court, a judge granted him partial custody in 2019. Every week, Paul would get the dogs on Tuesdays and Wednesdays.
The first time Paul picked up Marox, the 16-year-old miniature Italian greyhound, and Winnie, the 14-year-old dachshund-¬chihuahua mix, the dogs jumped all over him, smothering him with slobbery kisses.
Reuters and the New York Times have been reporting for years about pet-custody battles like this being on the rise in the United States. Many states have changed their divorce laws to preserve the crucial bond between people and their pets. Divorce can get complicated when a pet is involved because most people view their family pets as more than mere property.
Knowing the Hard Truth About Divorce Laws and Pets
The hard truth is pets are treated like property when couples divorce, subject to property division laws like furniture or cars. But there are ways couples can safeguard their pets just in case a divorce happens.
The American Academy of Matrimonial Lawyers (AAML) recently reported a rise in divorces due to stress during the pandemic. The pandemic also led to more couples adopting pets. This explains the massive increase in custody disputes involving pets over the last two years.
The AAML estimates that 10% of current divorce cases come with custody negotiations over pets. Dogs are the focus of 88% of these custody disputes. Cats account for about 5% of pet battles.
Pet custody battles during a divorce have an inherent set of problems because of the discrepancy between the family viewing the pet as a family member and the state treating pets like a form of property. Louisiana law does not account for the emotional weight a pet has in the family dynamic. There is no real consideration for the best interests of a pet.
In family court, a judge will only consider pet ownership according to Louisiana property division laws. But there are options. Pet custody can also be decided by other means, including:
- Who owned the pet before the couple was married—the pet usually stays with the original owner
- Pets acquired while married are subject to the community property laws of the state
- Most couples negotiate the terms of custody and come to an agreement without involving the court
- Some couples choose to address any potential pet custody issues by having a prenuptial agreement drawn up to set the terms in advance
Breaking Down Family Law
Divorces can involve a multitude of concerns:
- How will the real estate and the property be divided?
- What about the divorcing couple’s community debt?
- What will the custody agreement look like?
- Will spousal support need to be arranged?
- Which spouse will the family pet live with most of the time? Will the other spouse be able to visit?
Louisiana law has many answers for all these answers except the ones regarding family pets. State law has little guidance on this issue. In Louisiana divorce cases, animals are legally known as corporeal movables.
Under the state’s civil code, a corporeal movable is defined as property that is either animate or inanimate and can be moved from place to place, like cars and furniture. If a family pet has become like a family member, this might seem like a cold approach, and there are times when the courts recognize the emotional volatility of the situation. Relationships and the sensitive bonds between pets and their pets.
If one or both spouses want the family pet to be considered a party when filing for
divorce, parties should request the court to treat it as a case of use and possession. The court will ask several questions and factor those answers into consideration and make a decision.
Three of the most frequent questions include:
- Did one spouse purchase the pet before the marriage and bring it into the familial relationship? In most cases when one spouse is the original owner of a pet, the court usually considers this separate property, and the original owner is allowed to keep the pet2
- 2. When children are involved, who has primary custody or is the domiciliary parent? Children can get extremely attached to their pets. Taking away a family pet from children can cause undue stress and should be a factor in the decision.
- Can the pet be considered as an emotional support animal? A mental health professional can designate the pet to be therapeutic to an owner with disabilities. Pets deemed as emotional support animals can help relieve symptoms of a mental health diagnosis like anxiety and stress. Odds are an emotional support animal will stay in the possession of the spouse who needs them more.
Protecting the Family, Protecting the Pets
Dire circumstances call for dire actions, and family law takes domestic violence cases seriously. That is why Louisiana is among more than half of the states with restraining orders for domestic violence containing provisions to protect pets. Pets being protected in restraining orders can ease the arduous process of victims (spouses and children) leaving the abusive situation.
Unfortunately, these provisions were not set in place for concern for the animal’s well-being necessarily. The stipulations regarding pets in domestic violence restraining orders are set in place to prevent abusers from threatening, harming, or killing pets to intimidate or hurt the family members they are abusing.
Usually, law enforcement could help retrieve the pets of domestic violence victims if the pets had to be left behind while fleeing the abuse. There are also federal laws in place covering pets in crimes governing stalking. This includes any crime a stalker might commit to hurt any victim’s pet, which includes service or emotional support animals and horses.
If you’re struggling to file for divorce because you’re battling the custody of a pet, you need a lawyer on your side to help guide you through the process. Contact Betsy A. Fischer, LLC today at 504-780-8232 to learn more.