April 7, 2010 – Divorce can be difficult enough. Child custody arrangements need to be determined and property needs to be divided. But what of the beloved family pet? Who gets custody of Spot?

Under the law, pets are considered personal property, yet people are often emotionally invested in their pets and treat them more like members of the family than a piece of furniture.

However, unlike the custody of children in divorce, where there is established case law and statutory guidance, there is no guidance when it comes to the disposition of pets in divorce. It’s up to the parties, or the individual judge if the parties can’t come to agreement. And there is no uniform way Wisconsin courts handle these issues.

“It’s easy to see the problem, which is that people tend to think of pets as family members and the law regards them as property,” said Judith McMullen, professor of law at Marquette Law School. “It puts pressure on people to work it out for themselves.”

Divorcing couples resolve pet custody in a variety of ways. Some divide multiple pets between spouses, while others agree to place the pet with one spouse with visitation rights provided to the other. In other situations, one spouse owns the pet with the other paying “petimony,” or the pet travels back and forth with the children between homes.

“Sometimes, nobody gets the dog,” McMullen added. “If you’re splitting up households, moving into two different, smaller places and can’t find a place that takes pets, the dog ends up in the shelter. It then isn’t really a legal issue but a social issue.”

An emergency situation

Divorce can create an emergency situation for the animals in that family, according to Anne Reed, executive director of The Wisconsin Humane Society. “I got my own first dog from someone who was divorcing,” Reed added.

Typically, divorce involves a situation where one or both parties can’t have an animal in the way they could before – either due to housing arrangements or because both parties return to the job market after time away.

“People also need to be aware that animal abuse and domestic violence often go hand-in-hand,” according to Reed. In some tragic cases, the animals become the unwitting victims of the acrimony between former spouses.

In a Wisconsin case, a spouse euthanized the family dog shortly after winning a bitter, long-fought battle for ownership. In California, a woman threw her former husband’s puppy into traffic and killed it.

The animals don’t need to become the victims, however. If, for whatever reason, it’s believed that an animal is at risk, the local animal shelter can offer assistance and, in some cases, provide for temporary care for the animal, according to Reed.

In addition to providing help in emergency situations, an animal shelter can also provide advice, counseling and even help make foster care or other arrangements for the family pet during the transition from one household to two, especially in those situations where neither party may be able to keep the pet.

“A shelter can work with you to develop alternatives for the animal that you may not have been aware of,” Reed said.

Where there is no guidance, anything goes

“The direction in divorce law is forcing people to work out their own solutions,” McMullen said. “Less than 5 percent of divorces go to trial, and even those going to trial, only are on certain issues.”

It comes down to the parties being able to come to some agreement regarding the disposition of the family pets, because in lieu of that, it’s anyone’s guess what a judge may do.

“You don’t know how willing a judge will be to deal with this issue compared to other issues in any particular case,” said Thomas Glowacki, a Madison divorce attorney for more than 30 years. “Part of it is how much the parties have worn out the judge with everything else. If you then throw the dog on the agenda, it may not get a whole lot of attention.”

The best course of action is for the parties to come to agreement, either incorporating the arrangement in the divorce order or drafting a separate agreement between the parties. Visitation is a solution that can work.

“I’ve represented clients in situations where one spouse gets ownership of the animal and the other has a mini-version of a placement schedule for visitation rights,” Glowacki said.

“However, it can become a cost-shifting issue, which can become a real burden if neither spouse wants the family pet, but the kids do,” Glowacki added. “I tried to explain to my client in this situation that there was no ‘doggie support.’ In the end, she got stuck with the dog and all the costs because, to do otherwise, you look bad to the kids if you get rid of the dog.”

In 2007, Wisconsin was one of the only states in the country to propose legislation on this issue of pets in divorce, but the bill ultimately failed.

“You could have a law that specifies placement for pets, but we don’t even have that with children,” McMullen added.

By Deborah G. Spanic, legal writer