When families are separating it is more than just children that can be placed in the middle of a dispute. Family pets are often a topic raised by spouses who are separating.
While you dog, cat, fish, rabbit, or other fur baby, may be an integral part of the family, the law views pets as personal property. There is no analysis of what is best for the pet, like there is for children. There is no timesharing, visitation or custody for pets. This can be a ruff reality for your family.
There are two cases in New Jersey that courts look to for guidance. In the early case of Annunziata v. Millar, 241 N.J.Super. 275 (Ch.Div.1990), a group of people sued the owner of land on which veterinarian had maintained an unofficial pet cemetery. They argued that there should be a restriction on the land preventing the owner and all future owners from disinterring the animal remains or removing any memorials placed for the animals. They attempted to draw a parallel between the level of deference the law and society provides to human remains to those of their deceased animals. The court disagreed.
However, the key facts of the case were that the owners had paid for a service to the veterinarian, specifically that the pet would be buried on the property. The veterinarian never promised maintenance of the site for this purpose or perpetual care. Rather, this was essentially the purchase of a one-time service. The relief sought in the lawsuit was well outside the scope of that limited service. The court noted that there was no agreement for anything other than the specific service.
Moreover, the relief sought was a burdensome restriction on real estate. The court felt that the owners lacked any basis for seeking equitable relief against the property. The court also noted that any agreements relating to real estate needed to be in writing. The court also felt that even if it disregarded this requirement there was no basis for an oral agreement that the veterinarian had promised to maintain the land as and for a pet cemetery in perpetuity. In short, there was nothing in the testimony in the case that allowed the court to even find the existence of a verbal contract.
Fast forward to 2009. In Houseman v. Dare, 405 N.J.Super. 538 (App.Div.2009), the court held that a verbal agreement with respect to the ownership of a dog could be enforced by specific performance. In other words, if you promise to give someone a dog, the court may make you do it.
Houseman is a case that is more frequently relied upon in family part cases. Houseman and Dare were in a relationship and they owned a house and a dog. When they broke up, they reached an agreement that Dare kept the house pay Houseman her share, and Houseman would keep the dog. Houseman moved out and took the dog. She allowed Dare to have a ‘visits’ with the dog and after one visit he kept the dog and refused to return it. Houseman filed suit and alleged the parties had a verbal agreement that she would keep the dog. The trial court, apparently relying on the adage (that is not law) that possession is 9/10s of the law, denied her request for specific performance and awarded her $1500, which was the purchase price of the dog.
Fortunately, the appeals court disagreed. The appeals court repeated the trial court’s finding that based on the testimony, the parties did in fact have a verbal agreement that Houseman would keep the dog and that this was not related to the distribution of the real estate. Remember, the Annunziata case was specifically focused on deed restrictions and the need for property related agreements to be in writing.
Houseman’s request for specific performance was appropriate. Specific performance is a legal remedy that is used when there is a breach of an enforceable agreement and money damages are just not enough. The aggrieved party (Houseman) could not be made whole by a monetary award alone and it is not fair to essentially reward the bad guy for breaking an agreement. The court also noted that specific performance is appropriate when there is an issue relating to heirlooms, family treasures or other items that induce a strong sentimental attachment.
However, like the Annunziata case, the court refused to consider a pet to be more than property under the eyes of the law. Rather, the court simply gave pets a higher standing when considering them in a property-contract dispute.
What these two cases tell us is that courts are going to take seriously disputes over pet ownership, but they are not going to engage in a best-interests analysis akin to what we would see in a child custody case. While you may consider your pets to be your children, the court will not. If you are unable to resolve the ownership of your pets the court will treat them as property and divide them accordingly.
Some things the court will consider is 1) who paid for the pet; 2) in whose name is the pet registered; 3) and, were there any verbal or written agreements about who would retain the pet in the event of a separation. On the other hand, if you reach an agreement and you memorialize it in writing, the court will enforce those terms.
If you have a case involving your fur babies, contact the experienced attorneys at Baker Legal Group today for a consultation to discuss your options and how to structure enforceable agreements.