Divorce is virtually never a fun thought. If you are thinking of filing for divorce or are already in the midst of a divorce, one of the immediate concerns is what happens to sweet little Bella or Max. This is an important question! Nowadays, pets are truly part of the family. A poll from 2006 showed that most people with pets would not trade their little fluff ball for even one million dollars. In fact, a study found that people actually have more empathy for dogs than adult humans. Wow, dogs really are our best friends!
Pets are more prevalent than ever these days, too. Post-pandemic, everyone has a pet. The COVID-19 quarantine loneliness got to many people, and many folks opted for pet parenting to soothe their coronavirus blues. As for New York, a staggering 1.1 million pets live in the big apple. In fact, nearly 50% of families in New York state own a pet. That’s a lot of furry friends inhabiting the great state of New York!
With so many pet owners, it begs the question: what happens to pets in a divorce? Does the judge invite Fluffy into the courtroom and see who she runs to first? Does the person who bought the dog automatically get to keep her? (Hint: it’s neither of these). As of recently, animal laws across the country have been rapidly changing around the topic of pets and divorce. So, how do New York courts decide on pet custody? What about a NY pet prenup–can you include what happens to your pet? These are all questions we will address. Let’s take a deep dive into what New York laws are saying about pet prenups and pet custody.
Legal History of Pet Custody
The sad truth is that pets historically have been treated, under the law, as a piece of property. Sometimes barely even that–in fact, one very old US Supreme Court case, Sentell v. New Orleans & Carrollton R. Co., 166 US 698 (1897), declared dogs to be “worthless” and even ruled that dogs may be killed if no one claimed the animal. Luckily, we’ve come a long way from this distasteful view of animals, but in many states, dogs are still considered property. Don’t worry, though; no courts are calling them worthless or ordering execution if unclaimed, but they are still being considered property.
That’s right, in many states today, pets in a divorce are treated like a car or couch and are given a monetary value so that it may be divided up the same way an expensive lamp would be. When determining who gets custody of a pet in a divorce, the majority of states take the approach that the pet is personal property. Many state courts will look at the ownership of the pet based on a set of state factors that relate to property ownership. Luckily for New Yorkers, this is no longer the case! Keep reading to learn more about how New York law is transforming into a more humane method of pet custody.
NY Pet Custody
To understand pet custody in New York, let’s take a quick look at child custody. Child custody in New York requires a judge to apply a set of factors to determine the child’s “best interest.” Some of these factors include:
- The home environment quality
- The level of parental guidance
- The child’s specific needs
- The child’s preference (if applicable)
- The option of keeping siblings together if desirable
- And more.
The court must apply an analysis of these factors to the case at hand and determine what is best for the child. As you can imagine, this can be a complex and expensive process. Remember this analysis and these factors for later.
Now, let’s look at pet custody. Historically, New York courts used to determine pet custody with an analysis that was the same as a personal property analysis. The pet would be awarded to one person or the other based on the same analysis it took to divide up a couch. However, this personal property analysis fails to consider one very important factor: the emotional bond between pets and their owners.
Jumping back to the present time, in a recent 2021 development, the pet custody law is changing the game for NY pet owners. When determining pet custody, this new law requires judges to apply a “best interest” standard, similar to the child custody standard described above. Meaning judges will now have to rely on the same set of factors as the child’s best interest (listed above) in determining the custody of the pet. For example, what are the pet’s specific needs? What is the home environment quality? Just like with children, this analysis could take some time.
Pets are going from being akin to a lamp to being akin to a child. That’s a huge step for animals but will potentially create a lot of bottlenecks in the court systems. Lengthy litigation, costly fees, etc., etc.
Another contentious point about this new pet custody law is that it only applies to “companion animals.” But what are companion animals, you say? Well, New York Agriculture law helps define what this term means. The law says a companion animal is “any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. . . [it] shall not include a farm animal. . .” So, does my pet goldfish count? Let’s find out!
What about my pet goldfish?
We’ve talked a lot about dogs, but what about other members of the animal kingdom, like horses and goldfish? To cut to the chase–the answer is yes, your pet goldfish or horse is probably covered under New York’s new pet custody law. As discussed above, the new pet custody law applies to any “companion animal.” In short, this means dogs, cats, and any other domesticated pet (besides a farm animal) that lives in or near your house. So, is that smelly hamster your daughter begged for considered protected under New York’s pet custody law? The answer is probably yes.
Let’s look at two recent New York cases discussing horses and pet goldfish as companion animals. In a 2006 case, People v. Garcia, 29 A.D.3d 255 (N.Y. App. 2006), the court determined that a boy’s pet goldfish was considered a companion animal because it was domesticated rather than wild, and it resided within the home. If you remember from above, a “companion animal” must be domesticated but not a farm animal living in or near the home.
Another New York case from 2013 (People v. Michael Lohnes, 112 A.D.3d 1148 (2013)) declared horses to be considered “companion animals.” You may be wondering, “I thought a horse would be considered a farm animal and excluded from being a companion animal.” That is a great thought, but in the eyes of New York law, a horse is not automatically considered a farm animal. A horse is considered a farm animal only when it is raised for commercial or subsistence purposes. If it’s not raised for commercial or subsistence purposes, it’s domesticated, and it lives in or near your home–it will be considered a companion animal.
What’s the bottom line here? Well, if you have a pet goldfish or pet horse and you get a divorce in New York, the court will apply a “best interests” standard similar to the analysis of child custody in a divorce. The court will consider things like the goldfish’s specific needs and who is the best-suited fish parent. Don’t laugh–this is real!
Pet Custody in NY Prenups
Everything we’ve discussed above is the default New York law and what happens to your pet in the event of a divorce. What about prenups? Prenups can override the default New York law, so can you include who gets to keep your four-legged friend in your prenup? Every state will have its own take on whether or not pets can be included in prenups, but let’s talk about New York’s take on this topic.
In New York, just like with children, if the pet does not exist at the time of the wedding and if it does not reside with one of the parties, you cannot contract as to pet custody in a prenup. On the other hand, you are able to put your pet in your prenup if little Fido existed before you got married and lived with you or your spouse.
For instance, let’s say you and your fiance decide to get a dog, Bella, one year before the wedding. In this case, it would likely be okay to determine custody of Bella in a prenup. On the flip side, if you and your spouse are planning to buy a dog after the honeymoon, you cannot put little Bella in that prenup since she didn’t exist at the time of making the prenup. The same goes for children in prenups. Remember that at the end of the day, the court has the ultimate decision-making power over what happens to children and pets because the best interest takes priority over everything else. To read more on New York’s prenup laws, click here.
It is often the case that the custody of the pet becomes a very contentious point in a divorce action. Thus, it would be wise to include custody provisions in your prenup as to who would have custody of the pet and even an access schedule for the other pet parent.
Remember, the courts will apply the best interest standard to determine the custody of your children, but in the event of a substantial change in circumstance from the time you entered the prenup to the time you enter the divorce, the Court has the right to decide custody, regardless of whatever you put in your prenup regarding custody. It is likely that the same standard would apply to pet custody, particularly if there is a child who also is attached to the pet at the time of the divorce.
“Petimony” in NY Prenups
“Petimony” is a non-legal term for the financial support of a pet. (Alimony is the support of an ex-spouse, petimony is the support of a pet, get it?) Anyway, questions like, who is responsible for the pet’s food, pet-sitting, vet bills, grooming, and the like are all questions that may need to be settled in a divorce.
Don’t forget this little rule: you may put provisions regarding responsibility for paying pet support, but only if the pet is alive at the time of the prenup and residing with at least one party. In other words, you can’t put pet provisions in your prenup if your pet doesn’t exist at the time. That same rule applies to child custody.
As you can see, New York’s new laws around pet custody aim to seek out the best interests of the pet. Who gets to keep Fluffy will be a judge’s decision based on a set of best-interest factors. This had come a long way from the past when pets were traditionally treated as personal property, the same as a lamp or a chair.
Remember, this new law is not only for Fluffy, but your pet goldfish will also be covered by the NY pet custody laws. And as for NY “petnups,” you can create a prenup to pre-determine your pet’s custody, but only if the pet exists before the wedding.
And don’t forget about “petimony”–the financial support for a pet from one spouse to the other (think: vet bills, food, pet-sitting, etc.). It’s an important topic to discuss and potentially add to your prenup!
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Lisa Zeiderman is Managing Partner at Miller Zeiderman LLP, based in New York. A matrimonial attorney, CFL and Certified Divorce Financial Analyst, she regularly handles complex financial and custody divorce matters, as well as pre- and post-nuptial agreements. Named to the Crain’s New York list of Notable Woman Attorneys for 2022, as well as a Crain’s New York Notable Diverse Lawyer for 2022, a Hudson Valley Best Lawyer in 2022, a 2021 Best Family Law Attorney for Client Satisfaction by the American Institute of Family Law Attorneys, among many other awards, Lisa is a founding member of the American Academy of Certified Financial Litigators and a member of the panel for Attorneys for Children. Lisa is also a member of the Forbes Business Council.
In addition to authoring a well-read blog on Psychology Today, “Legal Matters: Understanding Mental Health Issues as They Apply to Divorce and Child Custody,” Ms. Zeiderman is regularly published in Financial Advisor Magazine, the New York Law Journal, and by the Forbes Business Council. She is also interviewed on issues ranging from financial empowerment to tax issues to child custody in a host of media. Ms. Zeiderman, a Fordham University of Law graduate, also serves as the Vice President of the Board of Savvy Ladies, Inc., and on the board of LIFT, Legal Information for Families Today.