Pet Prenups: Fighting Over Fluffy

Keli Goff

When Melanie Griffith and Antonio Banderas announced the end of their nearly two-decade marriage, they vowed to finalize things “in a loving and friendly manner.”

But according to reports it is possible that could change, as a custody battle seems on the verge of heating up. Not a custody battle over their daughter, who will soon turn 18. But a custody battle over their pets.

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It has been reported that Griffith wants custody of the couple’s three dogs. While this elicited some ribbing in cyberspace, according to experts I interviewed, disputes over dogs and other pets are no longer a laughing matter legally speaking, having become commonplace in family law. With Americans spending more on pets than ever before, and the average couple delaying parenthood, pets have achieved a status in culture and in most families that the law is struggling to adapt to.

“I have seen many, many battles over pets,” said famed divorce attorney Raoul Felder known for representing celebrities like Rudolph Giuliani. “Unfortunately, as far as the law is concerned, pets are ‘things,’ and they are decided on the same basis or law as the judge may deal with the wedding presents, who gets the vase, et cetera.”

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Jared Wood, a partner at the firm Goldstein, Egloff, Ramos, and Wood in Massachusetts, echoed that sentiment: “Although for many people pets are like children, in the eyes of the court they are not.” As a result, he explained that he has seen judges handle divorce disputes regarding pets in wildly different ways. A judge who appreciates pets and the value of their bond with someone may hear evidence about which party was more involved in the day-to-day care of the pet. But many judges treat pets like furniture—with potentially devastating consequences.

“For the most part,” said Wood, “judges say, ‘What is it worth to you?’ and have a bidding war.” He explained that just as they might do with a couch, a judge will say whichever party wants to keep the dog has to pay the other party for the pleasure.

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Kelly Chang Rickert said of her experience as a divorce attorney in California, “I’ve seen people fight over hearing aids and people definitely fight over their pets because nowadays people treat their pets better than they treat their children.” The law is not specific on the issue, she explained, except in extraordinary circumstances: “There is one law that has to do with domestic violence. Under the domestic violence code if you file a restraining order against someone you can ask for custody of the pet.” But she advises people that the safest way to avoid being at the mercy of the lack of clarity in the law when it comes to pet custody is to address pets in a prenuptial agreement. “If you came in with Duffy [the pet] and will want out with Duffy then put in [a prenup] ‘I’m coming in with my dog and will take him when we break up.’”

Attorney Marina Korol of the California based Law Offices of Korol and Velen agreed that postnuptial agreements are also worth seriously considering for couples who purchase a pet together. As Korol explained, usually one party does most of the caretaking, and a postnuptial agreement “would make sure that upon divorce or separation the pet would go with the spouse more bonded with the animal.” If there isn’t a prenup or postnup addressing pet custody then “courts have traditionally awarded visitation.”

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This, she explained, indicates that many courts are aware that pets are more than just property in the traditional sense. Judges are beginning to view them as legal “hybrids” of property and children. Last year a New York judge granted a divorcing couple the right to engage in oral arguments over pet custody for the first time in the state’s judicial history. The landmark legal showdown was ultimately averted. The couple settled out of court.

Wood said this is common when people realize that how much litigation and how much time and money pet custody cases often require. Craig Dershowitz spent $60,000 fighting for the return of his dog Knuckles after an acrimonious breakup with his girlfriend.

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But often more is at stake than money.

Korol mentioned a case in which a man attempted to murder his ex-wife. The source of dispute: the visitation arrangements for their dog. Korol’s law partner Rozanna Velen spent three years battling to recover her client’s canine. Because of the case, “I’m now known as the dog lady, and I don’t even like dogs,” Velen said in a phone interview. They ended up having a three-day trial solely focused on determining custody of the dog. Though her client purchased the pet before the marriage, her ex-husband claimed otherwise, requiring Velen to call witnesses such as the veterinarian and dog trainer to attest to the pet’s original ownership. “We won,” she said. But it was a hollow victory. “He took the dog and held it for three years until we could get to trial. We couldn’t even find the dog. She got the dog back, and six months later the dog died.” Velen considers the circumstances of the dog’s death suspicious.

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Her client’s ex-husband was ultimately sanctioned for presenting false evidence, and she is currently pursuing the $99,000 judgment against him.

Felder said threats of violence against pets during divorce disputes happens more than you think. He wrote in an email, “In a case I had, the husband was awarded a talking parrot, and the wife was supposed to leave the parrot with the doorman to be picked up by the husband.  After the time for the pickup was arranged, the wife whispered to the husband, ‘He will be dead when you pick him up.’  I then repeated this to the judge, and he admonished the wife and said that the bird better be in perfect health when the husband picked it up.  In over the thousands of cases I have had in 40 years, one person put a kitten in a microwave oven, and in another case a puppy in the dishwasher.  The puppy staggered out and lived; the kitten was less fortunate.”

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According to Wood, “Especially with married people who don’t have children, pets have incredible symbolic value attached to them and they become a focus of a fight larger than the pet itself.” He concluded, “It becomes about someone feeling like they won.”

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