Pet Custody and Prenups: The ‘Pup Nup’

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 25, 2015.

Who gets custody of the family dog? There is an uptick in people fighting over their cats and dogs when they divorce. The battle is contentious, as your dog is a family member. Can a prenup help?

I’ve written on this topic before. Your pet dog may be considered by you to be a member of the family, but under Florida law, Brownie the chocolate Lab, is merely personal property to be divided.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Recently, some New York courts have ruled that pet custody divorce disputes are treated differently than other divorce disputes. Unlike a child custody fight, pet custody fights are resolved on a “best for all concerned” standard.

A CBS news report showed many couples have entered into “Pup-Nups” -agreements specifying who gets custody of the pet in the event of a divorce, who pays the veterinary costs, and who is responsible for caring for the family pet.

A prenuptial agreement could make provision for visitation after a break-up. But is it enforceable?

In New Jersey, a court did order shared custody of a pet. After the parties broke off their engagement, the ex-girlfriend allowed her ex-boyfriend to have visitation with Dexter, the dog. The ex-boyfriend refused to return Dexter. The court found that pets are a special category of property and enforced the parties’ oral agreement allowing them to spend alternating, five-week stretches with the dog.

Many states may not uphold pet custody clauses though. In Pennsylvania, for instance, a couple signed a settlement agreement that gave the wife custody of the dog, and provided the husband with visitation. The court explained that Pennsylvania considers dogs to be property, and the Husband’s motion to enforce visitation under the contract was void.

Despite the current law, a pet is a special kind of property. Pets are unique and irreplaceable. Pets are more like antique or valuable art than a generic table, lamp, or toaster.