How to Get Custody Of Your Pet in a Divorce
How to Get Custody of Your Pet in a Divorce
Although many pet owners view pets as members of their family, nearly all states in the United States view pets as property. During divorce proceedings, the fate of a pet is determined in accordance with marital property laws governing that state. Some courts have begun moving towards considering the best interest of the pet when determining custody. However, if keeping custody of your pet after a divorce is important to you, you may not want to leave the decision up to a judge.
Reading the Laws
Consider hiring an attorney.Family law is very detailed and far reaching. So many different things are likely to impact your case, and judges have great latitude for discretion. If you can afford a local attorney who knows the types of things your judge favors and disfavors, it would be best to hire one. See . Even if you cannot afford a full-service attorney, some attorneys provide “unbundled services”, which means they will provide limited services to you, such as preparing documents, giving you legal advice, or even teaching you the law as it applies to your case and coaching you through the process.
Read the statutes.You can usually find a link to your state’s statutes on the webpage for your state’s legislature, highest court, or governor’s office. Find the statutes dealing with divorce, community property, equitable distribution, or property distribution. These will usually be found in a chapter entitled something like domestic relations or divorce. These statutes will tell you how your state defines marital property versus separate property and the factors your state considers when distributing marital property.
Search case law.Frequently, terms and phrases in statutes will need to be further defined. Courts make these definitions when cases come before them. Google Scholar has recently added a case law database you can use to search for key phrases to see how courts in your jurisdiction are interpreting each factor. You may want to try searching on keywords such as:
- Division of property
- “Pet” (or an animal type) and “marital property”
- “Pet” (or and animal type) and “custody”
Coming to an Agreement
Compromise with each other.In trying to make an agreement, try to bargain by giving up your rights to property your spouse would like in exchange for the pet. This is a compromise agreement, and courts are likely to accept agreements between the parties unless they are grossly unfair.
Use mediation.If you are unable to compromise on your own, you will likely be required to go through mediation for your divorce. In mediation, a neutral third party attempts to bring the parties to an agreement on their issues. There is no need to bring any evidence because the mediator does not make any decisions. The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial. In most states, statements made in mediation cannot be used in court, and the mediator makes no statements to the court other than whether mediation was successful. In other states, the mediator will make a recommendation to the court as to how the court should rule on the issues. Be sure you are aware of how mediation is treated in your state..
- If mediation is successful, the mediator will generally prepare the proper documents, obtain the signature of each party, and submit the documents to the court.
- If mediation is unsuccessful, the parties simply proceed to court.
Determine how a court would likely rule.In many states, if the pet was yours prior to the marriage, it will likely be considered separate property and not subject to property distribution. It often helps to know how a court is likely to rule while you are negotiating agreements, whether with or without a mediator. If it is likely a court will award the pet to you, you may have more leverage in negotiations. Be aware, however, that some courts order the sale of property that is hotly contested. If marital property was used for major expenses related to the animal, your state may deem a previously-owned pet to have become marital property. If your pet is deemed marital property, there are a number of things you can show a court to make it more likely to award the pet to you:
- Evidence that you take the pet to the vet
- Evidence that you care for the pet most
- Evidence that the children are attached to the pet, and the children will be spending most of their time with you
- Evidence that your home and lifestyle after the divorce will be more suited to having a pet
Put the agreement in writing.Any agreement needs to be reduced to writing. Even if your agreement does not settle all issues in your divorce, the agreements that have been made should be reduced to writing and submitted to the court so that the court only has to be concerned with those items in dispute.
Fighting in Court
Locate the appropriate court.Even if you and your spouse agree on all of the issues, you will need to file your divorce in court and obtain the judge’s signature on the order. Again, consider hiring an attorney for this. If you do it yourself, on the website of your state’s highest court, there should be a description of the state court system. Looking at that description, locate the family court or the court of general jurisdiction in your state. Then, locate the court of the same name in your local county or parish. You will need file in in the county in which you and your spouse live.
Locate and complete the appropriate forms.Most states provide pre-prepared forms for family law. These can usually be found on the website for your local court and/or your state’s highest court. You can often get assistance finding and completing forms at your local self-help center. Some states provide an interactive online program that creates your documents tailored to your particular circumstances.
Prepare for filing.Once the appropriate forms have been completed, you will need to sign them. Any forms that have a notary block on them will need to be signed in front of a notary. Make 2 copies of all documents.
File your documents.Give the original set of documents to the clerk of the court that will hear your case. A filing fee will be charged unless you apply and qualify for a waiver. You can ask the clerk to stamp your copies with the filing date. The clerk will also need to sign your summons or citation, which s/he will return to you.
Serve the other party.Ask the clerk to sign your summons or citation when you file your documents. You need to make a copy of the signed summons or citation for your records. Then, attach the original summons or citation to the copy of the documents for the other parent. The other party must receive these documents usually within 90 to 120 days of the date you file your case. Methods of service are different in each state, and acceptable methods can be found by reading your state’s civil procedural rules. They usually include some of the following. Note that they rarely include you delivering them:
- You can pay the sheriff’s office to serve them.
- You can pay a private process server to serve them.
- You can arrange for a friend or relative (not involved in the case and over 18) to serve them by a method listed in the civil procedural rules. Be aware this person will need to complete a Return or Proof of Service and may need to testify as to how they served the documents.
Wait for the answer.In most states, the other party has 21 or 30 days from the date s/he was served with the petition to file a written answer. You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received. If no answer was filed, consider filing for a Default Judgment.
Participate in discovery.If you need to gather information or evidence to support your case in court, you will do this via discovery. Read the rules governing discovery usually found in the civil procedural rules to learn about discovery techniques and processes in your state. In general, you can require the other party or other potential witnesses to provide you with copies of documents, allow you to inspect items or property, or require them to answer questions under oath (written or oral). Depending on the issues in your proceeding, you may also be able to require the other party to undergo psychological/psychiatric or vocational testing or an evaluation by a professional to determine certain issues, such as the likelihood of the other party to abuse or neglect the pet, and make a recommendation to the court. Contact your local family law self-help for assistance with some of these.
Make disclosures.Throughout the case, you will need to make certain disclosures to the other party, and you should request these same disclosures if they are not made voluntarily. These disclosures may include financial affidavits, lists of people expected to testify at trial and what they intend to testify about, or exhibits you intent to present at trial, either as evidence or for demonstration purposes. If these things are not disclosed prior to trial and the other party objects to their use, you may not be able to present them at your hearing.
Read the Rules of Evidence for your state.Be sure you understand them. If you have any questions about them, it is worth paying an attorney for assistance or instruction. Ensure you have admissible evidence to show the court that the pet is either your separate property or that you should be awarded the pet in the property distribution.
Participate in mediation.Mediation can occur more than once in a case, so you can request mediation at any point that you believe it may be effective.
Schedule your hearing.Contact the clerk of the court to schedule your hearing. You should be able to estimate to him/her the length of time you anticipate. The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for the hearing. You will need to provide notice of the hearing to all other parties. You can do this by preparing a Notice of Hearing or by sending a letter to the other party giving all details of the hearing (date, time, location, length of time, judge). Ask the clerk if your court provides a form for this. Issue any subpoenas necessary for any witnesses.
Attend your hearing.On the day of your hearing, be sure you are dressed cleanly and respectfully. If you can wear a suit, do so. If not, clean clothes that would be suitable for the office are acceptable. If you can only wear jeans, be sure they are clean and in good repair. Do not wear shorts, flip flops, tank tops, miniskirts, or sagging pants. Arrive early. Speak only to the judge, not to the opposing party or their attorney. Address the judge with respect, calling him or her “Your Honor” or “Judge”. Stand when speaking. The case will likely proceed as follows, though this can vary under some circumstances:
- Opening statements of the petitioner (a roadmap of the case and what will be proven)
- Opening statements of the respondent
- Witnesses called by the petitioner and cross examined by the respondent.
- Witnesses called by the respondent and cross examined by the petitioner.
- Closing arguments by the petitioner (a summary of the trial and arguments as to why the judge should rule in petitioner’s favor)
- Closing arguments by the respondent
- Rebuttal by the petitioner
- Ruling by the judge
Consider appealing an adverse ruling.After the judge’s ruling, the prevailing party is usually tasked with preparing any orders. If you submitted proposed orders earlier, the judge may use those. The judge may also have stacks of blank orders on the bench that s/he fills out and signs while making the ruling. If you are tasked with preparing the order, locate the appropriate order form from the link you located above and complete it. Make 2 copies. File the original with the court, and send a copy to the other parent. Keep the other copy for your records. Once the judge signs the order, you can get a copy of the signed order from the clerk. If you disagree with the judge’s ruling, you have generally 30 days to file a Notice of Appeal with the trial court. Check your state’s rules of appellate procedure for these deadlines.
QuestionIf the pet is registered in my name, do I have the advantage in court?Top AnswererThanks!
QuestionHow can I get my pet back from my dad's ex wife?Top AnswererThe law considers pets property, not family. It all depends who is the registered owner of your pet. If it is your legal property, or your dad's, you can show in court that your property is being held by someone else and demand it be legally returned. However, if your dad's ex wife is the legal owner, you have little or no claim to the pet.Thanks!
- If there is abuse towards the pet from your spouse it is certainly appropriate to bring that up in court when arguing for custody. However, the burden of proof lies with you. Be prepared to prove to the judge that your spouse is an abuser and is unfit to have custody of the pet.
- There have been divorce cases in several states where the partners could not come to agreement over pet custody and the court ruled that neither person could have it, and it was taken away from the family.
Video: Pet Custody Disputes: A Legal Primer
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