COVID-19 Resource Center

05/02/2022

Pets, Prenups, and Divorce: What about the Dog, the Cat and even the Horses?

Today, couples are living together before marriage more than ever before, and many couples are bringing furry companions into their mutual lives.  When couples decide to part ways, however, things can get nasty, especially when it relates to deciding the fate of their beloved pets.

One way couples can decide what will happen to their pets—their beloved dogs, cats and even horses—is for them to enter into Pet-Nups, which are prenuptial agreements (“prenups”) for pets.  They may also seek to add pet provisions into standard prenups or as part of co-habitation agreements.  The possibilities are endless when it comes to securing the future of your pets.

Evolution of Pet-Nups or pet prenup provisions

Many people, especially millennials, are less likely to have children than their parents were, and many are opting instead to add a puppy or kitten to their home.  Overall, pets are less expensive than babies and can allow for more flexible lifestyles.  To some, pets are the new kids.

Pets become an integral part of the family and we develop a deep sense of love and attachment for them.  Because we are so strongly bonded with our pets, couples need to plan for their pets’ lives before, during and after their marriages.

There are some famous examples of high-profile pets igniting messy custody battles.  For example, People for the Ethical Treatment of Animals (“PETA”) penned an open letter to Kevin Federline on behalf of Britney Spears’ dog when she and Kevin divorced, and Drew Barrymore had to fight for the right to keep her beloved Labrador when she and Tom Green divorced after only six months of marriage.

A prenup could have circumvented much of the headache caused by these doggie dramas.

What can go into a pet prenup?

Before you get married, you should talk to your soon-to-be spouse and attorney about a prenuptial agreement.  A standard prenup will detail all of you and your partner’s financial assets and liabilities.  You might want to think about retirement funds and insurance policies.  Always be mindful that the prenup can become pretty complex if you have a complex financial situation.

While you can’t include prenup provisions that name who will get custody of your human child, or who won’t be obligated to pay child support, you can include these terms when talking about a pet.

Your prenup can dictate how you and your partner will allocate funds to cover your pet’s expenses, insurance, and emergencies.

Some estimates provide that a dog may cost owners up to $40,000 during its lifespan; a cat could cost around $30,000.

In a Pet-Nup, both parties can make a determination as to what veterinarian will be used, which accounts you will draw from for pet emergencies, what will be the maximum amount of money you can spend on emergency care, and what will be the end of life terms for the pet.

Consider including provisions in your Pet-Nup that spell out who is responsible for paying pet insurance premiums after a divorce.

Pet-Nups can determine who will have pet custody

In a Pet-Nup, you can even pre-arrange who will have primary custody of your pets after separation.

Your pet provisions can include either a general plan that describes the percentage of time you each want to spend with your pet, or who pays for what with respect to the pet.

The Pet-Nup also makes clear who owned the pet before the marriage so that ownership doesn’t have to be proven in court in the future.

When it comes to owning horses, for example, you can use a prenup to specify who purchased the horses before marriage and establish an understanding that the horse is that individual’s separate property.

Without a Pet-Nup or pet provisions in a standard prenup, that horse owner would have to prove ownership during a divorce, which may become more difficult if ownership records are not properly maintained.

A Pet-Nup can make that clear once and for all.

Divorce without a Pet Prenup

If you don’t have a Pet-Nup or pet provision, and the couple is not able to reach an agreement on their own, a judge is left to make a decision about which member of the couple will get the pets.

They will look at which person is taking care of the pet (i.e. walking the pet, taking the pet to the vet, paying for the bills) and who was on the purchase papers.

If a couple is fighting over a pet, a judge can order the pet be placed into temporary foster care, until the couple can figure it out.

A judge will often seek to determine which person is clearly the most emotionally attached and has the most vested interest in the pet and award that person custody.

A Pet-Nup works that out in advance.

Changing law regarding pet custody in divorce cases

Pets have traditionally been considered personal property across the United States, including in the DC-area, and that view many would now argue is out of date.

As dogs have transitioned into the role of emotional support animal, it makes sense that in some states, courts are adopting a hybrid approach between considering pets as personal property and members of the family.

In New York, for example, Governor Kathy Hochul recently signed into law the “pet custody bill,” which requires courts to use a “best interest” approach for pets, similar to the way courts generally assess the “best interests of the children” when determining appropriate custody and access schedules for minor children.  This law specifically reaches “companion animals” such as dogs, cats, and other domesticated animals kept in the home. Unfortunately, if you or your partner own farm animals, you may need to include specific provisions in a Pet-Nup that are tailored to your needs.

While pets are certainly still not on the same level as children when it comes to how the courts will consider their interests, it does show that courts understand the vital role that pets play in our lives and that a pet’s well-being matters, too.

Tips for Pet Prenups

Consider:

  • Your pet expenses
  • Who is providing the most care
  • Who really wants the pet
  • Who has the ability to pay

If you have any questions, please contact Tracey Coates at tcoates@c-wlaw.com or Geoffrey Witherspoon at gwitherspoon@c-wlaw.com or by phone at (202) 280-2275.

Tracey J. Coates is a partner and Co-Chair of Cipriani & Werner’s Metro D.C. Family Law Practice.  Geoffrey T. Witherspoon, II is an associate in the Metro D.C. Family Law Practice.

Watch Tracey’s appearance on Fox 5 Good Day DC discussing, “Who Gets the Dogs?https://youtu.be/G7btCABAJ-M