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February 2018 Newsletter

HOW ARE PETS HANDLED IN DIVORCE

As any pet owner will tell you, pets are part of the family. They are normally treated the same as any child of the family. Each of the family members loves and cares for the pet and enjoys spending time with the pet. Often when couples with pets decide to divorce or separate, their love and affection for their pet adds another difficult layer to the divorce or separation process, especially when they jointly obtained the pet and have been taking care of it together.

If a couple can reach their own independent agreement, they can make provisions for custody and/or visitation with their pets in the agreement. However, if this is not the case, a divorce requires the Court to make the final equitable division of marital property which by definition would include the family dog or cat. Many people are under the mistaken assumption that pets are treated the same way children are treated by the Court during a divorce or separation. Specifically, they believe that the Court will award one person custody of the pet and set out a specific visitation schedule for the other party. However, in the majority of the states, this is usually not the case.

Most states in America consider pets to be “property” for purposes of divorce and separation. Simply put, during a divorce or separation, pets are treated the same way any other property is treated, usually without looking towards the “best interests” of the pet. That is to say, Fido /or the monetary value of Fido is allocated between the parties the same way a retirement plan or piece of furniture such as a sofa or bedroom set are allocated. However, during recent times as pets take on an even more significant role in people’s lives, the Courts are beginning to change their views on how pets are treated in divorces and separations based upon the emotional attachment and investment that people have with their pets.

Just in the past year, Alaska has become the first state in America to require judges to look at the “well-being” and “best interest” of the animal in cases when divorcing and separating couples have pets. Alaska amended its divorce laws to include provisions considering “the well-being of the animal” and even allowing joint custody of pets. Moreover, Alaska amended its laws to include pets under domestic violence protections, including allowing restraining orders and requiring the abuser to pay support to the victim’s owner for the care of the pet. According to the Animal Legal Defense Fund, at least thirty-one states have similar domestic violence laws relating to pets.

The current trend shows a shift in how the Courts view pets during divorces and separations. Below is a brief analysis of how Pennsylvania and New Jersey treat pets in divorce proceedings.

Pennsylvania

Pennsylvania currently considers animals to be personal property for purposes of equitable distribution of marital property in divorce proceedings. The most significant case in Pennsylvania relating to pets in divorces and separations is the 2002 Superior Court case Desanctis v. Pritchard, 2002 PA Super 221 (Pa. Super. 2002). In Desanctis, the parties had purchased a dog named Barney from the SPCA during their marriage. When they divorced in 2000, they entered into a property settlement agreement that mainly dealt with Barney. The agreement between the parties was not incorporated or merged into the Divorce Decree. The agreement stated that Barney was the wife’s property and “she will have full custody.” The agreement permitted the husband to have visits with Barney. However, shortly thereafter, the wife moved and no longer allowed the husband visitation with Barney.

After the wife moved, the husband filed a Complaint in Equity asking the Court to grant injunctive relief mandating “shared custody” of Barney, to declare the wife in breach of their agreement, to reform the agreement to provide for “shared custody” of Barney and to award him attorney’s fees. The wife filed preliminary objections, which were granted, and the Complaint was dismissed. The husband appealed and the Superior Court’s decision followed.

The decision in Desanctis created what is known as “Barney’s Rule.” The Court found that Barney was property and that the parties’ agreement explicitly awarded the property to the wife. Further, the Court held that any terms in the agreement that attempt to award custody or visitation with Barney, was void because there can be no custody or visitation of personal property. The trial Court equated husband’s arguments with attempting to seek a visitation schedule for a table or lamp.

The Desanctis case is important because it reiterates that pets are considered property and that custody and visitation agreements are void and of no effect.

New Jersey

New Jersey also recognizes pets as property. However, a recent 2009 Superior Court

Appellate Division opinion recognized that New Jersey Courts would also consider the “special subjective value” of pets to their owners when they make determinations about who will be awarded possession of the animal.

In Houseman v. Dare, 405 N.J. Super 538 (NJ Super. 2009), the parties purchased a pedigreed dog for $1,500.00 when they were engaged to be married. Several years later, Mr. Dare ended the relationship with Ms. Houseman. Ms. Houseman signed a deed transferring her interest in their jointly owned home to Mr. Dare. When she moved out, Ms. Houseman took the dog with her. Ms. Houseman testified that Mr. Dare told her throughout their entire break up that she could have the dog and half the value of their house and that her primary concern during their discussions was retaining possession of their dog.

Despite Ms. Houseman’s requests for a property settlement agreement, there was no written agreement concerning the dog. Ms. Houseman did allow Mr. Dare to have visits with the dog at his home, after which he returned the dog to her. Subsequently, Ms. Houseman left the dog with Mr. Dare while she was on vacation. When she returned home Mr. Dare would not return the dog. Thereafter, Ms. Houseman filed a Complaint. The trial court found that Mr. Dare must pay Ms. Houseman $1,500.00 for the value of the dog because he retained possession of the dog. Ms. Houseman appealed the Court’s decision because she did not want the monetary value of the dog but instead wanted to have her dog back in her possession.

The Appellate Division reversed the trial court’s conclusion that specific performance is not, as a matter of law, available to remedy a breach of an oral agreement about possession of a dog reached by its joint owners. The Court noted that when personal property has special subjective value, the courts have determined that awarding possession of that personal property is the only adequate remedy for tortuous acquisition and/or wrongful detention of the property, i.e. specific performance. Further, the Court held that pets have special “subjective value” to their owners and as such, a monetary award is not adequate to compensate Ms. Houseman if there was an agreement to share custody. The case was remanded to the trial court, which granted the parties “joint possession” of the dog.

Houseman v. Dare is significant because, while New Jersey does not recognize pets as anything other than property, the Court made a finding that pets do have a “special subjective value” that sets them apart from standard personal property and is entitled to equitable relief.

If you have questions about how to best provide for your pets well-being during a divorce or separation, our experienced Philadelphia family law attorneys can help. Contact Pozzuolo Rodden, P.C. today.