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Animal LawThe Newsletter of the ISBA's Animal Law Section

October 2012, vol. 4, no. 2

Beloved pets—The oft-overlooked legal quagmire

In law as in life, change is the only constant. As family lawyers, we feel that change acutely. Though every family is different, revolutionary changes in the definition and composition of families have occurred over the last generation.

Gender roles have shifted, making the female bread-winner and/or the stay-at-home dad a commonplace fact pattern. We no longer assume that Wife receives custody and Husband pays child support. In fact, we no longer assume that children born during a marriage are, in fact, products of the marriage. Same sex couples live openly in committed relationships, often within the confines of civil unions. Heterosexual couples eschew marriage for many reasons, sometimes as a stance in alliance with their gay friends. Fewer and fewer families meet the stereotypically defined “traditional” family unit.

With these and other societal changes, the way we interview clients has also changed. More than ever, families choose to forgo children, whether living within the bonds of marriage/civil union or partnered without legal benefit. Even when children are present, we question parentage; parental roles and responsibilities; and our client’s desires as to the outcome of the ultimate custodial determination. Nothing is a foregone conclusion and we ask our clients a plethora of questions that were previously left untouched. Nonetheless, we frequently forget to inquire as to the presence of, or the relationship with, family pets or animals.

While the family pet has been a staple of American life for many generations, our pets’ roles, perceived needs, and places within the family unit have changed dramatically. I grew up with a succession of Schnauzers in a neighborhood where pets were part of the family. At that time, canine socialization meant a brief visit with other neighborhood dogs while out on a walk. I am now convinced that Bismarck’s monthly escapes were part of her larger plan to attempt play with Churchill, De Gaulle and Bonkers. Yet, doggie daycare was a scoffed foreign concept—something the extremely wealthy were doing in New York and California. Bismarck was regularly vetted and groomed; she even had a $20 sweater for the heart of winter. Yet, I can still hear our family’s ridicule of the Neiman Marcus Christmas Look-Book’s high-end designer collars, leashes and “active wear.” When Bismarck succumbed to old age, she was buried in the backyard and memorialized with a dogwood. Had my parents divorced, however; without question she would have received no mention in the decree.

In 2005, like so many of my single, child-free contemporaries, I became the proud owner of a rescued pug. When I started my search, little did I know that I would endure an extensive telephone interview, a home visit and a six-month post-placement interview. Shortly after her arrival, Mildred was re-vetted; outfitted with a soft leather collar and a bevy of winter sweaters and coats; enrolled in a doggie daycare program; and gradually introduced to spending time at the office.

Much to my surprise, she made immediate, valuable contributions to my practice. Many clients would ask to hold her or to pet her when talking about difficult topics. She instinctively knew which clients wanted her close and which clients did not. Children flocked to her and she kept them entertained so clients could speak to me without interruption. Her power to provide comfort, entertainment and joy was demonstrated on a daily basis. Many clients commented that they hired me specifically because I understood how they felt about their animals. At that point, I started to realize the evolution of society’s valuation of pets.

Although she loved the attention at the office, Mildred craved play with her friends at day care. She was more content when she socialized at least twice a week. Day care was as important as food, water and love. As I wrote the check and read the daily day-care report cards, I quickly realized that I had become invested in Mildred—emotionally and financially.

When my partner entered the picture, Mildred’s approval was as important as my parents’. Once our relationship was long-established, I would gently tease him—reminding him that the State of Illinois recognized her as my non-marital property and in the event of the termination of our relationship, Mildred would be awarded to me. After his well-formed argument detailing his contributions to her well-being and care, I would grin and say, “When you have the law, you argue the law. When you have the facts, you argue the facts. You lose.”

As she aged, her expenses began to multiply. When she was diagnosed with advanced hip dysplasia and arthritis, we were referred to board-certified specialists. Eventually, her medical and dental costs rose significantly, exceeding ours. Nonetheless, withholding care was not an option. Although Mildred is near the end of her life, we do not regret one penny we have spent—even when those pennies meant a shorter vacation or fewer “things” for us.

At the end of the day, Mildred has, in essence, been my child. Once Tim integrated into our family, she became his child as well. She was included in the family pictures with my parents and brother. She is invited to extended family holiday celebrations. She may be one of the only dogs with a personalized needlepoint leash, made with love by her “Pug Gram.”

Our family’s relationship with our dog is far from unique. Data collected over the past decade affirmatively shows that Americans have become more willing and desirous to spend substantial portions of their disposable income on pets. This holds true across the social-economic spectrum.

The non-breeding portion of the pet industry, spanning the range of food to day care; accessories to veterinary care, is one of the few that has continued to experience at least 5 percent growth each year since 2001. The New York Times and USA Today have both commented positively on the industry’s ability to withstand the recession. Advances in veterinary science have allowed people to extend the length and quality of pets’ lives. Owners express greater concern about the quality of the food that their animals consume and providing their pets with healthy, vibrant lifestyles.

USA Today reported in November, 2011 that pets live within 72.9 million households, roughly two-thirds of all American households. Given the widespread ownership and increased interest in ensuring Fido’s lofty place in the family, our profession must recognize that in many cases, resolving pet issues can be as important as addressing child custody and property. Accordingly, we, as practitioners must affirmatively meet our obligation to ensure that our clients’ animal needs are being met in the advice we give and the legal documents we prepare.

Just as we ask probing questions about children, financial holdings and real estate, we should also be inquiring as whether clients have pets. Although technically considered property, the questions we ask about pets should more closely resemble the questions we ask about children. As with children, different families have different ways of raising, interacting and dealing with their pets. We must determine whether the parties will be able to work together to achieve the best outcome for the animals or whether court action may be required.

Within my own practice, I have handled numerous issues surrounding the custody, care and expenses of animals. Learning the questions to ask has helped me meet my clients’ needs.

I always ask the following questions:

• Do you have any pets?

• What type of pets do you have:

• What are their names?

• When did you acquire the pets?

• Have you reached an agreement as to where the pets will live?

• If so, have you discussed how the pets’ bills will be paid?

• What are their average food, medical, dental and accessory expenses?

• Does your pet have any extraordinary expenses?

• What type of interaction do the children have with the pets? (If applicable)

• Describe your relationship with your pets.

• Describe your spouse’s relationship with your pets.

Depending on the answers, follow-up questions may be necessary. Obtaining a realistic portrait of the expenses incurred by the animals is important. This is particularly vital if the custodial parent will be primarily responsible for the pets’ care. In some circumstances, a large portion of child support may literally be eaten by the animal. In those instances, you may serve your client well to attempt to negotiate an agreement about expenses.

Recently, a client came to me after successfully mediating most issues in her divorce. In our first meeting, we reviewed the terms of the mediation agreement. She initially indicated that all issues had been addressed. After discussion, I learned that she and her husband had amassed an extensive turtle collection with accompanying accoutrements exceeding $15,000. Although they had agreed that the turtles would remain in the marital residence until Husband relocated to his permanent residence, the move would not occur for several months. The parties had verbally agreed to a complicated schedule of cleaning and care. They had devised a formula for division of expenses relating to the turtles. None of this had been raised in mediation. The provisions were reduced to writing and the parties have followed the terms of the settlement agreement since that time. I recently learned that issues had arisen regarding certain unexpected turtle expenses. The terms of the Marital Settlement Agreement and Judgment of Dissolution of Marriage were the tools the parties needed to navigate their differences of opinion.

A few years ago, I met with a new client. She had entered into an agreed dissolution without the benefit of counsel. The parties had a side agreement to equally divide time with and expenses of their dog. One year later, my client was transferred to a new position. After writing a letter to the opposing party indicating that the Marital Settlement Agreement failed to address issues regarding “Molly,” I received a panicked call from husband’s original attorney. “How in the world could I forget to include a child?” she exclaimed. After the relief set in, we were able to negotiate an agreement that provided for Molly to visit Husband when Wife returned to the area for holidays and vacations. The strict letter of the law provided that as pre-marital property, Molly could have been awarded exclusively to my client. Nonetheless, she strongly believed that Molly would benefit from continued contact with her ex.

 

Frequently, the parties are equally attached to an animal, making settlement impossible. The law in Illinois is very clear. Animals are treated as any other property. Nonetheless, the interaction clients have with their pets is typically distinguishable from their relationship with inanimate objects. As practitioners, we have little legal guidance as to how to address the emotional attachment people have to their animals in dividing property. We have no provisions to determine which party is best suited to be awarded the animals. Similarly, we have no provisions that allow the Court to determine which party the animal may prefer.

ISBA’s Family Law Section Council has had vigorous debate as to whether additional legislation is required to address this issue. The naysayers believe this to be a slippery slope. Those in favor believe that practitioners and the judiciary desperately need direction. Some judges believe that they absolutely have jurisdiction to hear testimony as to where animals should be placed. Judge Ed Jordan once described a hearing that featured a well-behaved Rottweiler as the star witness. Other judges believe they have no such jurisdiction.

Fairness dictates that the same facts, tried by the same people should obtain the same results no matter where the case is tried. As the law currently stands, this is not the case. Passing legislation regarding possession and support of pets would realize a substantial step to guarantee decisional uniformity throughout Illinois.

Family practitioners are well aware that changes in the law lag far behind changing societal beliefs. Multiple attempts are often required to effectuate the necessary developments. Now is the time to start the process. Our clients deserve it. More importantly, their pets deserve it, too.


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