What Is a “Pet-nup” and Should I Have One in My Marriage?

We are all familiar with the idea of a pre-nuptial agreement. These are agreements, or contracts, couples put together before marriage to protect themselves and each other in the event of a divorce later down the road. Pre-nups are simply a fact of modern life, and shouldn’t be seen as an unromantic gesture or a sign that the marriage will ultimately fail.

Today’s pre-nuptial agreements are a practical way for couples to ensure their property, assets, and debts are assigned correctly in the event they choose to divorce, or if they are facing an uncertain future. Most pre-nups focus on issues including:

• What is separate and what is joint property
• Each spouse’s right to alimony
• Who is responsible for what debts
• Who gets the house, business, etc.

One thing pre-nuptial agreements cannot specify are issues relating to child support and custody, or anything that would waive your personal rights. An experienced attorney can help you draft or review a strong pre-nup or post-nuptial agreement that aligns with your personal circumstances.

Can I put the family pet in a pre-nup?

Yes, you can. In fact, this option is becoming so popular, many states are enacting laws to give courts the power to consider pets during a divorce. These laws and bills are called “pet-nups” and are gaining popularity around the country. Currently, Alaska, California, and Illinois have legislation allowing judges discretion to consider the best interests of family pets during divorce proceedings, and New York has a bill pending.

These pet-nups use the “best interest” approach similarly to children, doing away with the thought that pets are property and viewing them more as a valued member of the family. Says Senator James Skoufis, sponsor of the New York bill (and proud cat dad), “Someone’s cat or someone’s dog is a part of their family and should not be treated like a piece of furniture or their Honda Civic.”

Although the courts typically approach pets and divorce on a case-by-case basis, divorcing couples and the fate of their pets are often left to the opinion or whims of the judge to whom they are assigned. This is why a pet-nup can be helpful to those whose pets are truly loved and important members of the family – especially when children are involved, who tend to bond tightly with their pets.

In states like Maryland that don’t yet have specific laws about pets during the divorce process, you can take steps to maintain ownership of your favorite furry, feathered, or scaled friend. An ABC News article discussing the pet-nup trend advises couples agree “at the time a pet is acquired during a marriage whose name will appear alone on registration or adoption papers. That person should pay any costs out of a separate bank account. Such measures are especially helpful if one party is trying to weaponize a pet in exchange for other coveted property.”

What are the “best interests” of a pet, anyway?

Animal behaviorist Karis Nafte works as a pet custody specialist for couples going through divorce mediation. She recommends prioritizing pet custody in divorce negotiations, as emotions tend to run high. Nafte told ABC News that sharing custody with a pet is often not in the best interest of the animal, as it can cause a lot of stress – “the back and forth between two homes and the emotions attached to each reunion can lead to behavioral problems.”

Further, even though pets like dogs and cats are still seen as property in the eyes of the law, animal advocates believe we need more legislation considering the best interests of animals. Cristina Stella of the Animal Legal Defense Fund told ABC News, “What we would like to see is to have animals considered in the most holistic way possible. Who is the animal bonded to? Who can provide for the animal’s overall health and well-being going forward?”

How can I get custody of the family pet?

If you haven’t put your pet in a pre-nuptial or post-nuptial agreement, you can still take some steps to strengthen your custody case for your furry family friend. The court will look at a variety of factors when awarding custody of the family pet, including:

• Who initially purchased or adopted the pet
• If the pet was purchased before or after the marriage
• Which spouse performs the majority of caretaking duties for the pet, including veterinary care, feeding and walking, quality time and play, etc.
• With which spouse (or child) the pet is most bonded
• Which spouse is most capable of providing a loving, safe, and stable home for the pet

One example of this might be a case where one spouse is moving into a small apartment with little to no outdoor space, and the other is retaining the family home. If the couple is in dispute over a large and active family dog, a judge may be more likely to award custody to the spouse with a home that allows the pet plenty of backyard space for exercise.

Don’t wait until you are in the middle of divorce proceedings to decide what happens to your most valuable assets, including the family pet. The Fulton family law attorneys at McCabe Russell, P.A. provide knowledgeable guidance in all things family law, including asset and property division. Find out how we can help you by scheduling a consultation today. Call 443-812-1435 or reach out to us through our contact form today. In addition to Fulton, we maintain offices in Bethesda, Columbia, and Rockville.