PODCAST SUMMARY

Sara Corcoran enlightens us about pet custody during divorce. It’s not what you would think. Even though we consider our animals to be family, the court system does not. She gives us some tips and guides us on the best way to share your pet.

THE HIGHLIGHTS

• Pets are like people to us, but not to the court system.
• Custody of your pets is best handled between the parties.
• If there are kids involved, there are tips to consider when deciding where the pet lives.

OUR GUEST – SARA CORCORAN

FULL TRANSCRIPT

Welcome to another episode of the exEXPERTS Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re Jessica and T.H.

TH: Today’s podcast is about your furry friend. Sara Corcoran, from Corcoran Family Law based in New Jersey has been very influential in changing of the laws regarding custody of your pets during a divorce, so we really wanted to learn more about this. Welcome to the podcast, Sara.

Sara: Thanks TH. Thanks Jessica. How are you guys doing?

TH: Good.

Jessica: Good. Thanks for taking the time. This is such an important topic because as you know, pet owners, I mean, it’s their kids. We were surprised initially to find out that it was a different category in terms of pets not considered part of the family that it was an asset. And yeah, so we thought all of that was so fascinating when we were digging into all of that. Let’s just dive right in.

Sara: Yeah. Yeah, so you’re right. Pets are largely in all of the states considered chattel, which is like the common law word for a thing. A desk, a television, they’re given the same level of importance in the eyes of the law, despite, obviously, our significant value of our pets. I mean, next to our children, come our pets in the context of a divorce, so I agree with you. You’re probably not alone Jessica to think that the law and the courts would give pets a little bit more priority than the flat screen or the weight bench or what have you. Luckily, in New Jersey, as a result of Houseman v. Dare, which is a case that was decided in 2009, and for which I represented the Animal Legal Defense Fund on, pets are given a little bit more oomph. That’s a legal term, oomph, but a little more than the flatscreen, and a little more than the weight bench. What the court decided–these parties were engaged to be married, they separated, they actually sold their house, which they owned together, and they distributed the proceeds from the sale. The mom of the dog had the dog and that was their agreement, I’m going to keep the dog, what have you. Dad of the dog had parenting time with the dog. Mom went on vacation, she left the dog with dad, and when she got back, dad said I’m not giving you the dog. As a result of that, among other things, my focus of course is on the animal as the volunteer attorney for the Animal Legal Defense Fund, as a result of his refusal to return the dog to mom, she brought an action in superior Court and sought the return of the pet. The first court you go to is the trial court. The trial court said, well, you both agree and stipulated that the value of the dog it’s $1500. Dad has kept the dog, and I’m going to let him keep the dog, and I’m going to give you $1500.

Jessica: Oh my god. Where was the press on that?

TH: Wow.

Sara: Yeah, I mean, obviously we’re all dog owners and dog lovers, so that just is bananas. That’s another legal term. What she did, thankfully, and what my organization did, as well as another organization was they took the case to the appellate division. Ultimately what the appellate division said, after a significant briefing schedule and filing by all these volunteer organizations, my organization in particular advocated and I advocated that it should be the best interest of the dog. What is in the best interest of the dog? Just like we analyze what’s in the best interest of the children when there’s dissolution of a marriage or a break up, what’s best? What’s best? The trial court ignored that, right, and said I’m going to give you 1500 bucks and we’re going to call it a day. I was quoted pretty ineloquently in the record by saying exactly that the 1500 bucks basically wouldn’t do it. I mean, I would have preferred they took a different quote, but that’s really in a nutshell what happened. The appellate division said that that £1500 is not going to do it. Why? Because pets have an enhanced intrinsic value to them. I explain it this way that we’re talking about the flat screen TV, fine, but then I also have my grandmother’s armoire that’s been handed down through four generations of my family etc. That is something that you can’t replace. There’s no value monetarily that can compensate me for that if it was gone. I need that item just like you need your dog. What that is called is, in the law, this is a legal term, the remedy of specific performance. The appellate division determined that in cases of pet custody disputes that specific performance, that is you must specifically perform the deal you struck, that deal can be ordered to continue, so monetary damages won’t suffice.

Jessica: Meaning that they already agreed she was the primary caregiver of the dog so money’s not going to do it, like you said. And so if that you’ve already struck that agreement, it’s hers.

Sara: Right. Correct. The trial court said really there was an oral agreement between the parties, and despite the oral agreement, implicitly, despite the oral agreement still said its 1500 bucks because pets are chattel. The appellate division said no, uh-uh, it’s not just chattel. It’s like your grandmother’s armoire, a court can compel. They changed the law. The appellate division changed the law as it pertains to custody of pets and said that is a remedy that can be had when there’s a dispute.

Jessica: For people who don’t have that kind of an egregious situation where they had an agreement that she’s going to have the dog, he takes the dog while she’s away, and then never returns it. What about when you bought the dog together, you’ve had the dog for six years, you’re getting divorced. What do you do? How can you decide? I mean, is it literally like child custody?

Sara: That’s a great question, and I get it frequently. It’s not just like pet custody in the eyes of the law, but I can treat it as such, and the parties can treat it as such in an agreement. That’s what I encourage people to do. The more you can resolve amongst yourselves in a final agreement, the better you are. So yeah, we include in agreements sometimes so and so mom or wife has primary custody of the dog, or dad does, or they’re going to alternate, or the dog goes with the kids. We also do that, the kids and the dog, they travel together, and we’re a bunch. Sometimes the nanny goes with the kids from mom to dad. Well, so does the dog. We’re putting everybody. Everybody go. Does that make sense? Yeah. Yeah.

TH: How do you handle that financially though? There’s child support. Is there financial support for your pet?

Sara: That’s another interesting question. I have built it in, in exceptional circumstances where perhaps the dog has a particularly sensitive stomach and requires certain specialized food and medication. We’ve had dogs who’ve required physical therapy as a result of injury sustained. Those things are all costly, and so we have built in those costs. And like I said, I think it’s a good idea to do because if you don’t, and you think about it later, you can certainly come back to court, but it’s going to cost you more money.

TH: Right. And if a dog gets sick later in life, to prepare that that’ll be a shared expense. Pets, cats, dogs, whatever, can get very expensive when they get older, and they get sick, and then who makes the decisions about how to proceed? Do we go down this route? Or we go this route? Communication must be critical also, when you have a pet.

Sara: Yeah, absolutely. That’s a great point, because the more that you can provide for I think up front and in advance, certainly for my clients, it’s just easier. It just brings some finality to it before you’re confronted with it.

Jessica: I’m curious, just because that’s kind of the road that you’re going down, so you have a pet that god forbid, gets cancer or gets sick in some way and you take it to the vet. The vet’s like, well, you could take it home and it’s going to have X number of days left, or we could put the dog down or the pet down. You disagree on how to handle that. How is that dealt with when it’s a pet custody situation in a divorce?

Sara: Yeah, I think a couple of different things would be important to know. Do they have an agreement? What was the agreement? Did it provide for legal decision making, let’s say, as opposed to just having physical possession of the dog? I think that goes back to the original question and point, which is to provide for as much as you can in a final agreement, so you’re not faced with these conflicts later on. How would a court deal with that? Not too well. I don’t know that it would be very effective. I think what would probably be my recommendation in that instance would be to go to a mediator to try to work something out if it was that dire of a situation, and the parties really couldn’t come to an agreement, and if the children weren’t of an age sufficient to maybe give their input. If they’re in their 20s, maybe we see what the kids have to say, so we have some sort of third party neutral who’s sort of an adult, although, their brain not having been fully developed yet, but enough to give their input and their insight. That’s what I would recommend.

TH: Why isn’t the law looking at a pet as a human if they’re being treated and considered–?

Jessica: Well, they’re not humans.

TH: No, no, no, but people treat them equivalent and sometimes better than their own kids, so why isn’t the law catching up with that if that’s what the majority of people do now?

Sara: Yeah, I mean, it’s a slow burn. Houseman was in 2009, and that feels like a very long time ago, over a decade ago. We’re due. We’re due for some action in the appellate division in New Jersey, to parley Houseman into maybe what I was arguing, which was exactly that TH, that it should be a best interest analysis. We should analyze what’s best for the dog. Who took care of the dog? Where did the dog sleep? Who fed the dog? Who walked the dog? Who cleaned up the dog’s mess in the yard? And you know what they used to do in the olden days, as my daughter calls them, like the 90s, they would bring the dog to court. They would put each parent and they would say call the dog. My father told me stories of this happening frequently, call the dog. Then people got smart, and they would manipulate the situation and have treats in their pocket, so that was not effective.

TH: That’s the only way I would get my dog to come in court is if I had a treat, because she’ll just sit there.

Jessica: If I was in court with TH, the dog would come to me.

TH: Probably, because Jessica would give her more than I would. But when you’re thinking about it, why doesn’t the Animal Defense League bring this up? I mean, the whole reason why this is so bizarre to me is because you look at commercials of abuse of animals, right? Donate, save this dog. People are rescuing animals. I rescued my last two dogs. You’re not rescuing a TV, you’re not rescuing the armoire, you’re not paying a charity to save and refinish your armoire. You’re paying for this dog to go through medical treatment so it can be adopted and brought into a beautiful home. Why isn’t the Animal Defense League or whatever, these bigger pet organizations fighting for a change?

Sara: Yeah, and you know what, TH? They are. They are. We just don’t hear about them because they’re being fought in the court system, which can be kind of boring. I think if you log on and you check out, and I would recommend everyone do this, go on to the Animal Defense League’s website, www.aldf.org. They’re based out of California and they find cases. I was local camp. They filed the amicus brief, and I did all the filings etc. They find cases that are particular to their goals and their efforts with respect to animals. They then evaluate how much, I think, headway they can make in a particular case, and they jump on it, and then they get involved. It’s really only a matter of time. It’s really only matter of time.

Jessica: People who are in a situation, they’re getting divorced, they have a pet, or several, what would you say is a checklist of the points that are the most ideal to have worked out during that negotiation period? I mean, we talked about a lot of things so far from everything from what to do if the dog gets sick, to the idea I guess, of visitation, different kinds of things. What are those must haves?

Sara: Yeah, I think you have to think about it as you had said. Decision making, and then where is the animal, and who are they with, and then, of course, the financial responsibility. I know you guys are joking around, and TH I’m sure your dog loves you just as much as Jessica, but I find quite frequently that particularly dogs, they prefer one person to the other in a union, in a relationship, at least for a period of time. For example, my dog right now is all about my husband. Typically, she’s all about me. I don’t know what’s happening. We’re going through a phase. She flooded my house, so she knows I’m a little ticked off, but she also didn’t know what her father wanted to do with her when she flooded our house. But anyway, we don’t involve the kids obviously. I think usually one or at least in my experience one–dog’s typically–we’re bonded to the dog. I think it’s a lot easier. It is. It’s a lot easier than kids, where are the kids going? Usually one parent says that’s fine. It’s a rare occasion where people are willing to spend a lot of money arguing over where the dog is going to go. First step is decision making. Where’s the dog living? How are you going to deal with the financial ramifications of caring for the dog? And I think in isolation, end of life care probably makes sense to build that out and carve that out too.

TH: Yeah.

Jessica: Do you remember that court case years ago? I want to say I think it was Leona Helmsley who ended up leaving like $40 million to her dog.

Sara: Yeah.

Jessica: The butler was like the executor of the estate.

TH: My grandmother left her dog with her dog walker, and also gave him enough money for what she thought was going to be the duration of her dog’s life, to pay for her dog.

Jessica: Which is reasonable, but $40 million? That dog is never going to need $40 million.

TH: There was nobody else she felt deserved the money more.

Sara: Well, let’s hope that there–I mean, who was the contingent beneficiary? I hope it was like the Animal Legal Defense Fund or the North Shore animal League. I’m sure it was something. Let’s give her the benefit of the doubt, despite perhaps the ill advised decision in the first place.

Jessica: This is such an interesting topic, and I feel like so many people would have questions about it, but not even think about it initially, not know what the questions should be, or the kinds of things to cover. I really appreciate you having this conversation with us because it’s something that I think a lot of people would also, like I said, be surprised about to know that your dog is just like a piece of property. If you don’t know the questions to ask, and you don’t know how to prepare yourself, you could get stuck with a judge who’s saying, here, just pay the other person 1500 bucks and be done with it, which sucks.

Sara: Right, but now in New Jersey, don’t forget if you have an agreement, and you have an oral agreement even–that’s what you should do if you get a dog together. It’s like a prenup. You create an oral agreement with your significant other and say, if we break up, I’m keeping this dog. If you want that dog, you make that agreement then, so if you have to testify at trial, you’re credible. We had an agreement, we had an oral agreement, and it’s consistent with Houseman v. Dare. Specific performance is a remedy, give me my dog.

Jessica: Excellent. Well, that is the title of the podcast, ‘Give me my dog’. For anyone listening, if you have any questions relating to animals, pet custody, that sort of thing, please let us know. You can find all of Sara’s information on our website at www.exexperts.com. Make sure that you protect yourself with your animals because they’re your furry kids.

TH: Unconditional love, sometimes.

Jessica: Thank you Sarah so much for joining us. I really appreciate it.

Sara: Any time.

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