Pet Custody and Divorce in Colorado: What Happens to your Pets?

To many people, pets are as important as children. According to NBC News and Pets360.com, Americans will spend over $60 billion on their pets in 2015.

The August 2014 issue of the Oxford International Journal of Law, Policy and the Family, cited a 2011 U.K. study that found that 20 percent of the respondents who were couples ending their relationship sought legal advice and fought for custody of their pets. The Journal said the 2011 study supported similar U.K. studies completed in 2005 and 2007.

Pet ownership is a growing trend in family law cases in Colorado

A February 2014 study by the American Academy of Matrimonial Lawyers (AAML) found that 25 percent of the responding attorneys said pet custody cases have increased in their practices since 2009, and 27 percent said they are seeing couples increasingly fight over pet custody, even if the problem does not reach the courts. The study also found that 22 percent of the respondents said their courts are allowing more pet custody cases.

So it’s not surprising that when a court has to determine who gets the pets in a divorce, it’s a tough situation. And despite the increased disputes and court attention, there are no statutes or influential case law on pet custody.

Debra Hamilton, a Armonk, New York, mediator, said that pets are becoming a serious issue in divorce mediations. “I tell attorneys who are handling divorces, number one, ask if they have kids,” Hamilton says. “Number two, ask if they have pets. These days pets are just as important as kids.”

Historically, divorce courts have treated pets as personal property, with no consideration as to the best interests of the pets. Parties in a divorce are strongly encouraged to reach an agreement on pet ownership so the matter does not reach the courtroom.

If the pet was owned by one party before the relationship and marriage, then that party can make a claim that the pet is separate property, and not subject to division as part of the divorce.

But absent an agreement between the parties, or a separate property claim, the judge in a divorce may determine the pet’s ownership using the same factors he or she uses to determine property ownership.

If the judge is willing to consider the best interests of everyone, including the pet, the following factors might be considered:

  • Has one party assumed primary care for the pet?
  • Who spent the most time with the pet?
  • Was the pet a gift to one party?
  • If there are children involved, the party with primary physical custody should have custody of the pet.
  • Which party’s expected post-divorce lifestyle is better for the pet? If one party travels for business, he/she may not be the best caretaker.

If you are in a relationship, but thinking of ending it, talk with your spouse about his/her thoughts on raising the pets alone. You may get a sense if it will be an issue.

If you are considering or working on a pre- or post-nuptial agreement, addressing who would get the pets can relieve a lot of stress down the road. As Las Vegas family law attorney Stacy Rocheleau said in a December 2014 Las Vegas Review-Journal article on pet custody cases, “Anything you care about, put it in a prenup.”

More like people

The momentum of U.S. case law is clearly toward treating pets more like children than property. Courts are also moving toward awarding pets to the party that cared for the pet the most.

A 2013, the New York state Supreme Court sent a custody case back to the trial court for a full one-day hearing to determine who would get sole custody of Joey, a 2½-year-old miniature dachshund. The Supreme Court instructed the trial court to determine custody based on what was best for all concerned, including Joey. Judge Matthew F. Cooper delivered the court opinion with some interesting quotes.

“If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.”

Judge Cooper clearly sees the trend toward treating pets as important family members.

The changes in the way society regards dogs and other household pets all but insure that cases involving the type of dispute seen here will only increase in frequency. It is my hope that the analysis engaged in here, including the survey of cases from both New York and other states, will help other courts more successfully deal with the conflict that ensues when a couple separates, a marriage ends, and a Joey, an Otis, a Bubkas, or a Lovey is left in the wake.”

In a 2009 ruling involving a pedigree dog, the Superior Court of New Jersey remanded a case back to the trial court for oral argument about the dog’s ownership, and the appropriateness of specific performance as a remedy.

Specific performance is a court-ordered remedy to perform a specific act instead of awarding money damages. It is typically used when monetary reparation cannot fully compensate a party or protect the party’s contractual expectation, and enforcement will not result in inequity to the offending party. In the case of possession of an item, specific performance can be invoked especially when the property has sentimental value, or the party has a strong sentimental attachment, such as an heirloom or family treasure.

The parties in the New Jersey case acquire a dog during their 13-year relationship. When the Defendant ended the relationship, the Plaintiff took the dog and its things. According to the Plaintiff’s testimony at trial, the Defendant said the Plaintiff could have the dog when the relationship ended. The Plaintiff would allow the Defendant to take the dog for visits and he would always return him. Until one time he didn’t.

The trial court opinion suggested that the parties had an oral agreement about the Plaintiff keeping the dog, but ruled that specific performance was not available in a case involving possession of a dog. The trial court awarded possession of the dog to the Defendant since he already had the dog, and $1,500 to the Plaintiff — the dog’s stipulated value and original purchase price. The Plaintiff appealed the trial court’s unwillingness to require specific performance and the return of possession of the dog.

The New Jersey Superior Court agreed. In the court’s written opinion, Judge Jane Grall, said:

“There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet based on one party’s sincere affection for and attachment to it than in resolving competing claims based on one party’s sincere sentiment for an inanimate object based upon a relationship with the donor … We conclude that the trial court erred by declining to consider the relevance of the oral agreement alleged on the ground that a pet is property.”

Judge Grall also commented on the appropriateness of specific performance in the case:

The special subjective value of personal property worthy of recognition by a court of equity is sentiment explained by facts and circumstances … that give rise to the special affection. In a different context, this court has recognized that pets have special ‘subjective value’ to their owners.”

The court sent the case back to the trial court for argument on the existence of an oral contract between the parties regarding the dog’s ownership, and the appropriateness of specific performance, which would be awarding legal possession of the dog to the Plaintiff.