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Pets remain part of property division unless included in prenup

Pet lovers in California may be interested to learn that an ever-increasing number of divorce cases involve pet custody. However, the language of family laws regards pets as nonhuman animals and therefore treats the pets in a similar way as one would regard a piece of furniture. The fact that many couples see their pets as children makes no legal difference. The value of a pet, rather than its best interests, is often considered during property division.

A divorcing couple in another state has been fighting a legal battle for two years. The woman obtained a restraining order against her former husband, keeping him away from the property where she keeps the dog they are fighting over. The man is fighting for visitation rights, as he asserts that he loves the dog as much as she does. However, the legal opinion is that a judge would never consider granting visitation rights for pets, as custody and visitation rights are assigned to children, and ownership to pets.

Couples are advised to include matters about custody and visitation of pets in a premarital agreement. Obviously there would be instances where a beloved pet is only acquired during the marriage, and therefore not included in the prenup. This is where a postnuptial agreement may be needed. A couple could draft an agreement to indicate who will care for the pet in the event of a divorce, along with matters related to “parenting” and visitation.

California couples that are unsure of how to go about adding their pet custody wishes to a prenuptial or postnuptial agreement, rather than having them during property division, may benefit from obtaining counsel. Doing so can ensure the legality of the documents. Although a loving family commonly believes that nothing will ever go wrong, the reality is that the deterioration of a marriage remains a possibility, and it is always better to be prepared.

Source: dailyherald.com, "Palatine business mediates who gets dog in divorces", Burt Constable, Aug. 3, 2014

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