Divorce is a difficult and troubling time for most. Divorce gets especially hard when a couple has to determine what to do with Fido, Fifi, or Rex. The pet industry is a multi-Billion dollar industry. For many Americans without children, or for even those with children, the family pet is just that – family. Thus, what happens to your furry loved one on divorce can have serious emotional impact for all involved.
The sometimes callous and impassionate legal system regards animals as chattels. A chattel is a tangible, moveable, or immovable, item of property, except real estate or other things connected with reap property. In other words, a pet is a piece of property. That’s a pretty cold definition of a member of our family! Unfortunately, or fortunately, depending upon your point of view, in the eyes of the law, your pet is akin to a vase or a car. This creates an interesting dilemma when it comes to deciding what to do with the family pet upon divorce.
Being that pets are property, we begin our analysis with categorizing the property into either community or separate property. If the pet was acquired prior to marriage by one party, it is presumptively that parties’ separate property. If the pet was acquired during marriage, it is presumptively community property, absent evidence of a transmutation agreement or a gift. Community property is to be fairly divided. Nevada does not have case law on the issues of pets; however, other jurisdictions in the United States have created standards that some courts use to determine who should be the caregiver for the animal(s). Hament v. Baker, 97 A. 3d 461 (Vt. S. Ct. 2014). Animals are not subject to the “best interest of the child” standards, and not subject to custody and visitation orders. Thus, a Nevada court must create its own standard on how to fairly allocate which party leaves the marriage with the pet, or how time is to be shared.
In Hament, the Vermont Supreme Court used the principals underpinning animal welfare laws in that State to create a list of two factors to be considered to determine who is to be awarded Fido. These factors are: 1) the welfare of the animal; and 2) the emotional connection between the animal and each spouse. In Hament, the court awarded the family dog to the Husband, a veterinarian, who took a balanced approach to raising a dog, while the wife, treated the dog more like a child.
The Hament case counsels parties to take a hard look at their care of their animals and the intrinsic needs of the species in question. Although we treat our dogs like children, they are not, and require unique handling to assure the dog is well socialized and able to adapt to human society. One’s ability to financially care for the animal, including food, vet visits and incidentals should also be discussed to determine which party is most likely able to properly care for the pet. In the end, parties are free to contract regarding property. Thus, two doggie parents can work out their own custody and visitation schedule to suit their needs. If the issue cannot be resolved through a mutual agreement, the Nevada Courts will be hard pressed to apply a standard it finds appropriate. Therefore, taking this issue to court produces uncertainty. Long/short of it…. Try to compromise for the benefit of your pet.
 For more on what a transmutation agreement is, see NRS 123.220