Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What Happens To My Pet In A New Jersey Divorce?

Although there are no established laws on pet custody in New Jersey Divorce Law, the issue of who keeps the pet after a divorce is on the rise.  As a New Jersey Custody and Divorce Lawyer for nearly 20 years, this is an issue that I have dealt with more times than I can count.  A survey by the American Academy of Matrimonial Lawyers (AAML) found that 25% of its respondents reported an increase in divorce cases where pets were at issue. The president of the academy noted that “judges are viewing pets more akin to children than dining room sets. They are recognizing that people have an emotional attachment to their animals.”

Despite this recognition, every state in the US considers animals as property. Judges will not grant custody of a pet, but rather award it as property to either of the spouses. However, since animals are of a different value to their owners than items like one’s dining room set, the courts consider them to be their own separate category of property. Animals are not fungible; they are unique, cannot be replaced, and cannot be compensated by money. Therefore, when determining which spouse should keep the pet or if the pet should be shared between the spouses, courts in New Jersey consider a set of factors to aid in their decision making process.

Factors courts consider when deciding which spouse keeps the pet after a divorce

Most New Jersey courts take into consideration three factors when determining which spouse will keep the pet after a divorce. The first factor is who spent the most time with the pet throughout the marriage. Typically, whichever spouse spent more time with the pet is the one who will retain possession of him or her. This is best for the animal because he or she is used to being around that spouse often and will not feel as much stress from the divorce.

The next, and most common factor, courts consider when determining which spouse will keep the pet after a divorce is who will have primary custody of the children. The custodial parent more often than not will always retain possession over an animal. Children often cope better with their problems if they have an animal companion by their side. Therefore, it is imperative that a child’s best interests are sought after and that his or her animal is not taken from him or her.

Finally, courts look at who took care of the pet’s basic needs when determining which spouse will keep the pet after a divorce. The spouse that always fed the animal or took the animal to the vet will most likely retain possession. Furthermore, if the pet in dispute is a dog, courts will consider which spouse walked the dog and took him or her to be groomed.  

The most recent New Jersey case law—Houseman v. Dare, 405 N.J. Super 538 (App. Div. 2009).  

In the Houseman case, a couple that had been dating bought a pedigree pug dog, which they named Dexter, together. The dog cost $1,500. After significant time had passed that the dog became accustomed to both parties, the couple decided to break-up. Houseman wound up taking the dog. A few months after Houseman had taken the dog, she decided to go on vacation and left the dog with Dare. When Houseman returned from her vacation, Dare refused to give her back the dog. Houseman then filed suit. The trial court judge awarded Houseman the sum of $1,500, for the value of the dog. However, this was not enough for Houseman; she wanted her dog back, not just the money it cost to initially purchase him. She appealed to the Appellate Court of New Jersey

The issue before the court was whether specific performance was appropriate with regard to the parties’ verbal agreement that Dare would return the dog to Houseman upon her return from her vacation. The dog was to be considered personal property; however, he was to be distinguished from other forms of property because he had a “unique sentimental value.” The Appellate Court followed the contract principles of specific performance as a way to remedy the situation. The court held that awarding Houseman with monetary damages was not sufficient compensation for her loss.    

Once remanded to the Trial Court, the court held that the dog would still be treated as an item of personal property and that Houseman and Dare would share joint possession over the dog. The Trial Court judge clearly articulated that a best interest standard was not to be followed and that the idea of pet custody was not to be touched. 

Despite the judge’s holding, the Houseman decision marked a milestone in cases where pets are at issue. As I am a well known dog lover myself, at the Law Offices of Edward R. Weinstein, we understand that for many folks this is an extremely sensitive issue and are here to provide our clients with the services they need when facing this issue.