Last week, our column dealt with the custody of three dogs that were at issue in a matrimonial dispute. To refresh your memory, the husband owned one registered animal before marriage. After mating the dog, the couple kept a pup, titled in the wife’s name, from each litter. Upon separating, the wife claimed that even the premarital dog had been “transmuted” into marital property because marital funds fed him. (To see the full text, go to www.nextsteps.net).

Unfortunately, the relatively few reported appellate court decisions don’t provide much guidance, with rulings ranging from “pets are just like personal property and will be divided like other property without addressing custody or visitation issues,” to “pets are granted special status,” meaning that custody and visitation may be decided.

A New York court may have addressed the custody issue most eloquently:
“Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, . . . we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.”

On the other hand, a Pennsylvania court dealt with the topic much more harshly, simply stating: “Despite the status owners bestow on their pets, Pennsylvania law considers dogs to be personal property. . . .” Then, after finding that one of the parties treated their dog like a child, the court refused to approve visitation with an “object,” not unlike “a table or a lamp.”
While the courts of some states have chosen to enforce “pet agreements” entered into by the parties, other courts have not.

Despite these divergent judicial decisions, with a growing number of folks getting divorced or separated, the pet is more often becoming a “child substitute” or a “child add-on” in matrimonial cases, and must be dealt with.

For this reason, if you are a pet owner who is married or about to marry, there are some things you should know and consider, with the following caveat: “There are no guarantees.”

• If custody and visitation of a pet is an issue, if you want to avoid the unpredictability of going to court, and if you want an expedited decision, you and your spouse can sign a pet custody and visitation agreement that includes an arbitration clause vesting one or more arbitrators with the authority to issue a final and binding decision that is not appealable. In this way, you and your spouse can at least avoid the expense and angst of court proceedings.

• For example, you and your spouse could each choose a veterinarian as your arbitrators, with the vets adding a third person to the arbitration team. You and your spouse would be required to split the cost of the arbitration equally, and the agreement could contain monetary penalties enforceable against the person who does not live up to the terms of the agreement.

• These agreements can’t be found on the Internet or in a forms book. They must be drafted from scratch by lawyers who understand the issues and are creative. While such agreements may be somewhat pricey, the cost of litigation would be much more.