Pets can be someone’s most cherished treasure despite all the extra work they often bring. Owners are willing to spend thousands on their pets despite, usually receiving no financial gain in return. Nevertheless, pets are something that are often purchased and sometimes for a significant amount of money. In recent years, pets have increasingly been regarded as integral members of the family, with owners fostering deeper emotional bonds with them.[1] Sociologists confirm that”‘[d]ogs and cats within the American family have a profound impact on things like fertility considerations, the parent-child relationship, family finances, involvement of extended family members and the household structure itself.'”[2] Considering the rise in emotional connection, courts should no longer treat pets within property law structures, particularly when it comes to divorce proceedings.
In the United States, the rate of divorce continues to rise in older couples.[3] The United States continues to have one of the highest rates of divorce in the country at 2.8 per 1,000.[4] The question becomes: how do courts handle pets in divorce proceedings? Judge Sica, a judge in Argentina, upheld the shared visitation agreement for pets in a divorce proceeding.[5] In his opinion, Judge Sica clarified that ” pets, are sensitive beings, that feel, that miss, that rejoice, that suffer and that acquire habits, so there is no doubt that the change brought about by the separation of the spouses will also affect them.”[6] The decision bolstered a proposed bill to the Argentinian congress to enshrine the interests of animals in divorce proceedings.[7] Additionally, the Jujuy province passed “ley 6293,” changing pets to be considered sentient beings.[8] Judge Sica’s opinion is consistent with other countries, such as Spain’s Law 17/2021 which reclassified pets as “sentient beings” as oppose to their previous designation as “objects.”[9]
In the United States however, it depends on what jurisdiction you are in to determine whether pets will be classified as sentient beings with the options of shared visitation or objects in divorce proceedings.[10]. In New York courts, case law has moved away from viewing pets strictly as property and focusing instead on what is “best for all concerned.”[11] With this focus courts are able to consider the emotional connection between the animal and each spouse, as well as the animal’s welfare.[12] The King’s County Supreme Court, in L.B. v. C.C.B., outlined a number of non-dispositive factors relevant to the decision-making process.[13] These 4 factors include:
“the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities.”[14]
California has passed legislation allowing court to “assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.”[15]
In contrast, in Vermont, the Court, in Hamlet v. Baker, held that it could not enforce joint ownership of a pet without legislative changes.[16] The Court stated that “[d]ivorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time.”[17] In LaRiviere v. Shea, the court has reaffirmed that “pet animals are property under Vermont law.”[18]
The jurisdictional dispute highlights the differences between the American outlook for pets versus the international outlook. As noted in the preamble of Spain’s Law 17/2021, “reform is needed not only to adjust the Spanish Civil Code to animals’ true nature but also to the nature of the relationships they have with humans.”[19] Spain’s laws are echoed by other European countries such as France Article 515-14 of their civil code.[20] The United States should consider these European Trends and enact legislation that recognizes the pet sentience, “or the capacity to have positive and negative feelings”[21], providing owners with more options in custody battles and acknowledging the emotional attachments that form between an owner and their pet.
Until then, there are creative solutions to avoid custody battles over pets.[22] This includes signing a “pet nup” to plan for your pets care should your marriage end. However, discussing prenups can be difficult for many reasons, and it is unlikely that pets alone will prompt these discussions. In lieu of this United States judges should follow Judge Sica’s example by bringing these issues into the limelight furthering potential legislative enactments.
[1] SMU, Sociologist confirms what pet parents know: Pets really are part of the family, PHYS ORG (July 16, 2021) https://phys.org/news/2021-07-sociologist-pet-parents-pets-family.html#google_vignette.
[2] Id.
[3] Charlotte Huff, More couples are divorcing after age 50 than ever before. Psychologists are helping them navigate the big changes, American Psychological Association (Nov. 1, 2023) https://www.apa.org/monitor/2023/11/navigating-late-in-life-divorce.
[4] Divorce Rates in the World: Divorce Rates by Country, Divorce.com (July 15, 2024) https://divorce.com/blog/divorce-rates-in-the-world/.
[5] Nicole Pallotta, Argentine Court Recognizes Visitation Agreement for Dogs in Divorce Settlement, Animal Legal Defense Fund (Aug. 24, 2023) https://aldf.org/article/argentine-court-recognizes-visitation-agreement-dogs/.
[6] Id.
[7] Id.
[8] Mara Resio, Pet ownership: unprecedented court ruling for two dogs and their divorced owners, Clarin (Oct. 16, 2022) https://www.clarin.com/sociedad/kiara-popeye-perros-regimen-visitas-matrimonio-divorcio_0_ssUfCPAVWZ.html.
[9] Alyssa McMurtry, Spain classifies pets as sentient beings for 1st time, AA (May 1, 2022) https://www.aa.com.tr/en/europe/spain-classifies-pets-as-sentient-beings-for-1st-time/2466250#:~:text=A%20new%20law%20in%20Spain,the%20preamble%20to%20the%20law; Rodriguez-Ferrand, Graciela. Spain: New Law Providing for Increased Protection of Animals Adopted. 2022. Web Page. https://www.loc.gov/item/global-legal-monitor/2022-01-17/spain-new-law-providing-for-increased-protection-of-animals-adopted/.
[10] See e.g., Hament v. Baker, 196 Vt. 339 (2014); L.B. v. C.C.B., 175 N.Y.S.3d 705 (N.Y. Sup. Ct. 2022).
[11] Pron v. Tymshan, 192 N.Y.S.3d 917 (N.Y. Civ. Ct. 2023).
[12] L.B. v. C.C.B., supra note 10.
[13] Id.
[14] Id.
[15] Cal. Fam. Code § 2605 (West).
[16] Hamlet v. Baker, supra note 10.
[17] Id.
[18] LaRiviere v. Shea, 307 A.3d 238 (Vt. 2023), reargument denied (July 5, 2023).
[19] Pallotta, supra note 5.
[20] Recognition of animal sentience and prohibition of animal suffering, Animal Protection Index https://api.worldanimalprotection.org/country/france#:~:text=Until%202015%2C%20the%20French%20Civil,moveable%20or%20immoveable%20asset%20categories; Racheal Heah, Should you get a pet nup? How the law deals with your fur baby if you break up with your partner, The Conversation (Sept. 13, 2024) https://theconversation.com/should-you-get-a-pet-nup-how-the-law-deals-with-your-fur-baby-if-you-break-up-with-your-partner-229735.
[21] RSPCA, Animal Sentience, RSPCA. https://science.rspca.org.uk/sciencegroup/sentience.
[22] Racheal Heah, Should you get a pet nup? How the law deals with your fur baby if you break up with your partner, The Conversation (Sept. 13, 2024) https://theconversation.com/should-you-get-a-pet-nup-how-the-law-deals-with-your-fur-baby-if-you-break-up-with-your-partner-229735.
