Pets and the Law, Part 2: “No Visitation for Furbabies”

So last week we talked about how pets aren’t fucking people, but rather that they’re property.  The gist of that is nobody can really claim that Fido is a living, breathing person with all of the legal rights inherent to it, even if his bark does sort of sound like he’s saying “Mama” and you’re just certain that he has the same intelligence as your Uncle Bob. Depending on your Uncle Bob you may be right, every family has that guy, but it doesn’t change the fact that Fido gets no special consideration under the law.

Last week, though, we focused on the question of treating a pet as property in the financial aspect of the law. What happens when you and your partner split up, and all you really have are “furbabies.” By the way, can I digress for a moment to discuss the term “furbabies?” I get it if you’re like 60, alone, and have four dozen cats and nothing else, but could motherfuckers in their twenties stop using the goddamn term? It makes you sound a little unstable.

Anyhow, back to the topic at hand: how do you handle the pets in a family law situation?

Let’s recognize what we all fucking know first and foremost: family law is a nasty, contested, bitter battlefield of broken hearts and stress. As one attorney told me, “There’s no such thing as an uncontested divorce, just a divorce that isn’t contested yet.” I try to stay as far away from that unholy mess as I humanly can, simply because I suffer from a severe lack of tolerance for bullshit, and it seems like everyone in a contested family law matter is willing to go to the mattresses over twenty-five cents worth of plastic silverware if it means leaving their ex eating cream cheese by scooping it out of the tub with a finger. While that shit is good for the overhead, it’s bad for the sanity of the attorney, and frankly I have to safeguard what sanity I have left and husband it pretty well. It’s a goddamn resource.

Lawyers know the standard family law client is not predisposed towards rational thought, and that shit will fucking extend to how the pets are going to be treated by the court. For example, I had a divorce case once where the sole contested asset was the dog. The couple had kids, a house, cars, money, all of which they were able to amicably agree upon. The dog, however? They fought over the dog for two goddamn years. The dog fucking died while they were fighting over it. Imagine being those kids? “Mom and dad agreed about us really goddamn quick, but they really love Spot.”

It makes sense, though. Property or not, pets are fucking important to people, and family law is ruled less by reason and more by emotion and the whims of the sitting judge.  So let’s take a look at the issues that can come up in family law when there are pets involved.

The Client Wants A Visitation Schedule, Can That Work?

Maybe, man. I mean, judges are doing a lot of crazy shit these days, and I’ve heard stories of lawyers successfully arranging a visitation schedule for pets are part of a post-nuptial agreement. However, I can’t say I strongly suggest it in most situations, because it requires way too much cooperation between the parties and I have a bad habit of viewing my family clients as being two children who are both screaming “MINE!” at the top of their damn lungs.

Why does it require cooperation? Well, because divorce is not about letting people share property. When people file for divorce, their existence as “co-owners” of property is supposedly terminated. They’re not supposed to keep holding the same property that they bought and owned together during the course of the marriage, that leads to a lot of fucking issues down the road once one of them starts dating again. The poor guy sitting alone in his boxers every night in a shithole apartment may be fine with sharing ownership now, but later? Later he’s gonna be pissed that his ex has moved on and he’s still eating an entire fucking ice cream cake alone while she/he is out having a damn good time.

With kids, the courts recognize that these are little people and assumes that the interaction and involvement of both parents is essential, which is how we end up with custody and visitation agreements. This is also how we end up with courts enforcing custody agreements strictly, not just to protect the rights of the parents but also to protect the rights of the children to have access to and support from both of their parents.  Pets, however, aren’t people, they’re property, and the court isn’t too fond of leaving hanging threads out there like “You both have rights to the ferret.”

Imagine it with a car: Ex 1 gets the Buick Monday through Wednesday, Ex 2 gets it Thursday through Saturday, and then they alternate Sundays? Does that make any goddamn sense? Of course not. It’s going to end in fighting and tears. The court’s job is to remove that possibility by dividing the property between the parties as equally as possible under the circumstances and in proportion to their needs and contributions to the marriage.

Pets are going to be subject to this shit. The court is going to look at the agreement and raise an eyebrow and, at least in my jurisdiction, refuse to enforce the custody/visitation portion of it. Yes, I have seen this happen. Yes, the court has refused to enforce the agreement that Bob gets to visit with Fido on the weekends. Yes, Bob was pissed.

What if it’s an “Unofficial Agreement?”

I mean, that can work, yeah, assuming that you’re dealing with two mature adults. That’s a big fucking assumption though.

I support thinking outside of the box, though, to get people to stop arguing over petty shit. So yeah, an unofficial agreement can work, but as an attorney you need to be clear that this is a goodwill agreement and is unlikely to be enforced by the courts in any fucking manner. If the ex suddenly decides to stop letting your client visit the pet, there’s next to no likelihood the court will enforce the “unofficial” visitation agreement between the parties. Likewise, if you’re on the side of the nominative property owner, you’ll need to make sure they know that they’re only obligated to allow the visitation in the interests of not being a fucking asshole.

What If My Client Can’t Agree On Ownership?

Then the court fucking will decide. The court may apply something like the “best interests” test that we use for kids to award ownership, or it may look to another factor. In my jurisdiction, the court will technically look to “Who fucking pays for the animal?” to determine who ownership will go to. Who bought the tube-cat, who took it to the vet and paid the bill, who bought the food, etc. etc. etc. That, at least in my jurisdiction, is the primary manner the court will use to determine who the animal should go to. Emotional attachment will not play a fucking part in this.

Some jurisdictions are changing this, however, and are looking at the overall aspects of the ownership, including who predominantly cared for the animal and who the animal will be best with in the long run. The court may also base the decision off of other factors, especially if there are kids attached to the pet, like how having the pet ripped away from the custodial parent would affect the children. It’s definitely an area of the law that’s in flux and…well…you should probably talk to a lawyer in your jurisdiction.

The Court May Cut Your Dog In Half If You Can’t Agree.

The worst case scenario, though, is the modern equivalent of Solomon splitting the baby. If you aren’t familiar with this concept, go pick yourself up a Bible or Torah and do a little reading.  Or, you know, read this part of 1 Kings 3:16-28:

One day two women came to King Solomon, 17 and one of them said:

Your Majesty, this woman and I live in the same house. Not long ago my baby was born at home, 18 and three days later her baby was born. Nobody else was there with us.

19 One night while we were all asleep, she rolled over on her baby, and he died. 20 Then while I was still asleep, she got up and took my son out of my bed. She put him in her bed, then she put her dead baby next to me.

21 In the morning when I got up to feed my son, I saw that he was dead. But when I looked at him in the light, I knew he wasn’t my son.

22 “No!” the other woman shouted. “He was your son. My baby is alive!”

“The dead baby is yours,” the first woman yelled. “Mine is alive!”

They argued back and forth in front of Solomon, 23 until finally he said, “Both of you say this live baby is yours. 24 Someone bring me a sword.”

A sword was brought, and Solomon ordered, 25 “Cut the baby in half! That way each of you can have part of him.”

Believe it or not, sometimes those Bible stories are fucking brutal. Don’t worry, though, what happens next is one woman is okay with the idea of cutting a fucking baby in half and taking home half a dead baby while the other gives up her claim because she can’t live with the idea. Solomon gives the baby to the one that can’t stomach the idea of slicing a fucking baby in half.

This is the best interests analysis in action.

The modern equivalent of this is the partition sale, where the court finally says “Enough of this shit, you bickering fucking children. Since you can’t decide who gets it, we’re going to fucking sell it and let you two divide the money it brings in.” Now, I have to admit, I have never actually heard of a judge ordering the forced sale of a family pet, but the power is there and eventually some judge will get the idea of playing Solomon the Wise to resolve the matter, if they haven’t already.

Of course, in complete fairness, the outcome will probably be that the person who gives up their claim won’t get the goddamn dog, because the law likes to kick people in the nuts every now and again.

Conclusion?

Family law fucking sucks, and the unique aspects of pet ownership will only make it suck more.

A decent attorney, though, can probably counsel a client into doing what’s best for the pet…even if it means giving up more money. Maybe, if your client really wants the dog, they’d be willing to take that thousand they’ll pay you to fight it and give that money to their ex to resolve it? Or maybe you can bring your client around to understanding that while they love the dog, the dog is property and the law won’t enforce their rights to it without time, money, and the right set of facts.

Or maybe you’ll get two unreasonable people and Fido will buy you a new Mercedes. Either way, on Wednesday I’m gonna wrap this series up with a post about the unique legal rights and obligations regarding pet ownership, including how much you can get if the vet accidentally kills Rover instead of neutering him.  See ya then.

-BB