Pet provisions in marital settlement agreements

The parties, Jane and Jim, own the Cocker Spaniel dog, Spot, and they are going through a divorce. Both of the parties would like to keep Spot as their own, although they know that one of them will need to be Spot’s owner. The other person would, therefore, be Spot’s visitor. This doesn’t make the “visitor” feel too warm and fuzzy. If they leave the decision up to the Judge, they may not like the result. Their attorneys tell them that pets are seen as property only, and that coming up with a schedule regarding time with Spot is out of the question if the Judge makes the decision. Therefore, they decide that they would like to work out a plan between themselves. They also understand that a judge may not enforce their schedule with Spot after they reach their agreement. However, they can work with a pet mediator to resolve any disputes regarding care and visitation. Pet mediators are available to work with pet disputes when the people in dispute are willing to work with them. Pet mediators and the parties’ attorneys need to provide the structure that keeps the parties focused. From the beginning, the parties need to agree about what they see going forward into the future, and not simply focus on the moment in time when they are negotiating their pet agreement.

Jane and Jim decide that they will share their personal property interest in Spot, and outline the provisions of the agreement as follows:

Spot is the personal property of Jane, and will be in her possession, except for the agreed-upon alone time that Jim spends with Spot, once a month, set out below.

The parties will make decisions based on the concept of their joint ownership of Spot, although Jane is Spot’s legal owner. This distinction is made in order for ultimate decisions to be made which may or may not be contemplated here.

Jim shall have his own time with Spot the first week of each month beginning on the first Sunday of the month at 9 am (when he will pick up Spot from Jane’s house or another agreed upon location) through the second Sunday of the month at 5 pm (when Jim will drop Spot off at Jane’s house or another agreed upon location).

Possession of Spot will not be relinquished to another person or entity unless and until Jim has been given the written right of first refusal to retain Spot as Jim’s sole property. Jim will have 14 days in which to decide to exercise this right and will do so in writing. If Jim fails to respond in writing within the agreed upon 14-day notice, Spot can be placed elsewhere. Jim will be provided with the name and address of the party with whom Spot was placed. If the parties so choose, Jim and the new owner can enter into an arrangement involving Jim and Spot. Jane’s primary personal property rights will be extinguished upon transfer of Spot to Jim or to a third party/entity.

While Spot is in the care and control of Jane or Jim, and under the terms of this agreement, each party agrees to be responsible to pay for and provide appropriate and sufficient food and water for Spot during their respective possession times with Spot.

Each party will keep the other fully informed of the other party’s home, work and cell phone numbers, in addition to home or vacation address. A party may remove Spot from the home address on a temporary basis for vacation or other temporary situation, with the written permission of the other party. The notice and permission shall be sought 30 days before the vacation is planned, and if no agreement can be reached between the parties within 15 days, both parties agree to submit the question to a mediator for discussion and resolution.

Spot’s veterinarian will continue to be Dr. ______ of (address). The parties have agreed to share equally in the cost and participation in the yearly veterinary care of Spot and any follow-up visits deemed necessary by Dr. _______. Each party will be provided the medical information from yearly visits for their files, for proof of vaccination and medical care.

While in their possession, both Jane and Jim agree to administer any medications prescribed by their veterinarian for the health and welfare of Spot.

If an accident occurs while Spot is in the possession of Jane or Jim, both parties agree to exercise the utmost care in providing emergency veterinary care for recovery. Both parties agree to alert the other at the earliest possible opportunity following an accident and agree to make mutual decisions, where practicable, regarding Spot’s care. Jane and Jim will keep each other abreast of accident care expenses, and will discuss and decide who will be responsible for payment of the medical expenses or share medical expenses as they will share medical expenses as they see fit.

Decisions about Spot’s medical care will be made after discussions between Jane and Jim. The ultimate life or death decision-making for Spot will remain with Jane. Jane will make her best efforts to include Jim in these decisions.

If Spot is in an emergency situation, and Jane cannot be reached, Jim will have Jane’s permission to act in the best interests of Spot based on all medical advice and information available. The parties trust that each will act and make decisions in Spot’s best interest.

Jane’s and Jim’s obligations for the care of Spot will end with the passing of Spot. Costs of end of life care and disposition of Spot’s remains will be shared unless otherwise decided at the time by Jane and Jim.

Under the terms of this agreement, Jane and Jim agree to make all best efforts to resolve disagreements that may occur in their relationship under this agreement on their own. If this cannot be done, Jane and Jim agree to submit their disagreement to a mediator of their choice and for each of them to pay half the expenses of mediation to resolve their conflict.

Of course, the terms of the Agreement will depend on the circumstances of the parties and what they want to do. Attorneys need to consider provisions which include the sharing of expenses, health care decisions, end-of-life decisions and future changes in circumstances. For example, the parties should clarify what distance is acceptable for transfer of the pet, whether air travel is allowed, and how to share transportation responsibilities and expenses. If the parties have children, it is best that the pet(s) follow the children, of course. My hat off to other attorneys who also draft these Pet Agreements, namely Attorney Debra Vey Voda-Hamilton (speaker on pet mediation and author of “Trailblazing a New Way to Address Conflicts Between People Involving Animals”) and Attorney Gina Calogero (argued successfully in Houseman v. Dare, 405 N.J. Super 538 (App. Div. 2009)) that family courts have jurisdiction in disputes over companion animals), for their input for us. Arf, Arf. ■

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February 2014Volume 5Number 3PDF icon PDF version (for best printing)