Yesterday, we discussed what happens if you are breaking up (without being married) and you share a pet with your former significant other. Today, Meagan and Adeline discuss what courts do when people cannot agree what to do with shared pets in a divorce.
You are Getting a Divorce and you Have a Dog
While most people consider their pets to be members of their families, Colorado courts do not yet treat them as such. If you purchased your pet before you got married, they are considered your separate property, meaning that the court cannot “divide” your pre-marital pets between you and your ex spouse. If you and your ex-spouse purchased your pets while you were married, the pets are considered marital property and the issue may become more complicated, if the two of you cannot agree who should keep the pets. A dog cannot be divided in the same way that a bank account can be, and, as most dogs do not have true monetary value (show dogs or breeding dogs being two exceptions), there must be a decision as to what is going to happen to Fido.
Only a few states have created laws that allow courts to create and enforce a pet custody schedule based on the best interests of the pet. These states have elected to treat pets more like human children instead of like chairs and bedroom sets. States like Illinois , California, and Alaska have enacted legislation actually allows courts to fashion a custody agreement for pets based on the best interests of the pet. Some other courts outside of Colorado have also come up with creative ways to allocate “pawrental responsibilities.” When allocating the dog to one party, some courts have considered factors such as the past mistreatment of the dog by either party , the dog’s surroundings at each home and the way they are treated by each party , and employing a bonding test. There is no uniformity in how pets are treated from state-to-state. In Colorado, however, until the legislation changes, your beloved pet will be treated like a piece of property if you end up in front of a judge.
If you are hoping that you can resolve disputes about the sharing of your pets between yourself and your ex-spouse, your best option is going to be to reach an agreement outside of court. With your attorney, you can barter for your pet in exchange for other marital property, or you and your former partner can create a “custody” arrangement for your pet.
Another option is to sign a prenuptial or postnuptial agreement. If you have a dog or or foresee getting a dog in the future, you can create a “pupnup” that determines what happens with your furry friend in the event of divorce. This is much like the cohabitation agreement discussed in Part I of this blog series. The attorneys at GEM Family Law can help you draft a prenuptial or postnuptial agreement regarding your pup, and any other property for that matter, so that you can rest easy knowing that your best furry friend will be taken care of, should you and your spouse decide to part ways.
If you cannot reach an agreement regarding what should happen with your pets, a judge will make a decision for you. Some Colorado courts may be persuaded by creative and compelling arguments for dog issues, but you and your attorney will need to thoroughly prepare to make any such arguments in court. Although the law only provides for dogs are to be handled like a bedframe or table that you and your spouse purchased together, we have heard judges state, “it is a living, breathing bedframe that needs to be walked and fed. I must take that into consideration.” Having a good attorney who understands these dynamics and can creatively argue your position is extremely important. Our seasoned attorneys at GEM Family Law can help you determine your best options moving forward.
Authored by: Adeline Sulentich, Associate Attorney, and Meagan Moodie, Partner