Fido and the Divorce
For many of us, our pets are our babies. Whatever turmoil happens in our life, being separated from our animals is not an option. However, enforcing animal visitation in the years after a divorce is nearly impossible and can be very costly.
The case of Sherman v. Kissinger affirmatively stated that Washington common law does not recognize animals as a special category of property. Washington courts have historically held animals and family pets to be personal property. Sherman v. Kissinger, 146 Wash. App. 855, 861, 195 P.3d 539 (2008).
Similarly, RCW 26.09.170(1) imposes that marital property divisions should be final. If a court is deciding visitation for a pet along with the final distribution of property, there is a high likelihood the determination could lead to more litigation when issues arise between the parties regarding their animals.
In Washington’s most recent case, Matter of Marriage of Niemi, the court ordered that the husband have full custody of the parties two dogs, while the wife received 10 hours of visitation per week. The husband appealed and the court found this ruling to be invalid, setting the standard for future couples and their fur babies. Matter of Marriage of Niemi, 19 Wash. App. 2d 357, 496 P.3d 305 (2021).
Just because you purchased the animal does not mean the court will award him to you. If your partner becomes the primary caretaker for the animal, they have a strong argument that in the divorce, they should be awarded the animal.
Prenup for Fido?
While you can’t put terms in your prenup about who will get custody of your child, or who will bear responsibility for child support, terms about custody of an animal is allowed. The prenup can also determine how you and your partner allocate funds to pay for your pet during and after the marriage. Other financial considerations for your pet could include what account will be used when there is a pet emergency and if pet insurance is necessary and who will be responsible for paying for it.
Pre-arranging who will have custody of the animal in the case of a divorce is another tool of a prenup. You can designate the custodial “parent” of the pet and set up other factors like a right of first refusal and visitation time. While this may seem like an awkward conversation to have with the love of your life, determining how your family pet will be taken care of will make one less thing you have to deal with in the circumstances of a divorce. Beresford Booth attorneys can help you feel prepared for any situation that is thrown at you and can advise you on the important things to include in your prenup when considering animals.