30th Dec 2014

By Vwpolonia75 (Jens K. Müller) (Own work) [CC BY 3.0], via Wikimedia CommonsThe Humane Society estimates that approximately 62% of households in the United States have at least one pet. And the relationship between pets and their owners is special.  In fact, the relationship is so special that airlines often allow those with diagnosed anxiety to bring their pet on board for comfort when flying (subject to pet size restrictions).

During a divorce proceeding, who gets the family pet is often a contentious issue.  Neither party wants to give up ownership.  So, what happens to Fido?  In most states, including Alabama, the pet is considered property and treated as such.

This means that the property is subject to equitable distribution in Alabama.  As explained in more detail here, equitable distribution means that courts seeks to distribute property fairly.  Unlike community property states, the property need not be divided equally.  This means that Alabama courts can consider factors like length of the marriage and whether a spouse engaged in wrongdoing when distributing the property.

This also means that Alabama courts will not award custody or timesharing of a pet; they will simply give it to one party or another like they would a couch or car.  The court could even order the pet to be sold and the profits distributed between the divorcing couple. Hearing a loved pet referred to as “property” is difficult for some to hear.  The good news is there seems to be a national push towards treating animals less like property and more like people during divorce proceedings.  Just last year, a New York judge agreed to a full hearing on what would happen to a dog in a divorce proceeding.

The case ultimately settled, but it is evidence of a move towards treating pets differently from regular property.  The article also indicates that one Alabama judge used “best interests” language in awarding the family dog to one spouse over the other.  This language is usually used in determining custody of children in a divorce.  The changes are likely to be slow and incremental, like many in the law, but over time there’s reason for optimism for pet owners.

Avoiding Disputes

One way of avoiding disputes during a divorce proceeding is to settle the issue ahead of time through use of a prenuptial agreement. A prenuptial agreement (also called a “premarital agreement,” or a “prenup”) is a contract that a couple enters into prior to marriage that dictates what will happen to their property upon divorce.  Alabama law recognizes prenuptial agreements.

Since pets are still generally treated as property by the courts, deciding what will happen to the pet upon divorce in a prenuptial agreement is wise. Of course, hopefully you don’t get a divorce and the agreement will never be needed – but it’s there just in case. It is much easier to make these types of important decisions prior to divorce when you and your soon-to-be spouse are still on good terms.

There are some special requirements that must be complied with to ensure that a prenuptial agreement is enforceable, so having an attorney draft, review, and explain the agreement is highly recommended.

Your Case

If you’re interested in learning more about what happens to pets during a divorce or have other questions about divorce, contact the Alabama family law attorneys at the Semmes Law Firm and let us guide the way.

Photo by Vwpolonia75 (Jens K. Müller) (Own work) [CC BY 3.0], via Wikimedia Commons

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