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The Pet Gazette

The Pet Gazette

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Who gets Fido in a divorce; Where is King Solomon when you need him?

In the Old Testament version of the bible, King Solomon is asked to decide the possession of a baby between two women, both of whom advocate that they are the mother of the baby.

 

When King Solomon suggested that the baby be divided in half, the non-biological mother says yes, and the biological mother said no because she wanted her baby to live, no matter what.  King Solomon then awarded possession of the baby to the mother who said no, thinking that no mother would want her child to be divided in half.  A wise man, King Solomon.

To date, there have been no Massachusetts appellate cases which addresses division of assets such as pets.

In Collins v. Guggenheim, 417 Mass., 615, (1994), the Supreme Judicial Court affirmed that there is no common law marriage in Massachusetts and that they … “have not permitted the incidents of the marital relationship to attach to an arrangement of cohabitation without marriage.”  So, if you and your partner aren’t married and you own pets, you should be aware that a prenuptial agreement would cover who gets Fido in the event that things don’t work out.  A prenuptial agreement is basically a contract prior to marriage with full disclosure of assets and an agreement as to who keeps what.  If you don’t have a prenuptial agreement, then you can’t expect the court to decide the ownership of Fido except under common law grounds, and I don’t mean common law marriage, because again there is no such concept in Massachusetts.

If you are married, then Mass. General Laws c. 208, §34, applies, which has to do with division of assets, and then the court considers the number of factors as to a division of assets.

Obviously, I’m skipping all aspects as to the filing of a divorce, motions for temporary orders, and other legal minutia.  The focus of this column is how to prove that you as the owner are better suited to be the owner of Fido and not your partner.  Again, I have focused on division of assets, because in my eyes Fido is an asset and not a liability.  By the way, liabilities also have to be divided in a divorce between the parties.

What if neither party wants Fido?  Again, there have been no Massachusetts appellate cases in the divorce area as to whose responsibility it would be to provide for Fido.  In my opinion, the Massachusetts courts would not allow Fido to be abandoned or neglected.

As a practitioner for over thirty years, if my client wanted to assert ownership of Fido, I would focus on the following;  for instance, who bought and paid for the pet.  Then, who cares, feeds and walks Fido, and takes Fido to the vet and who pays the vet.  Are there any photos of you with the pet?  What evidence is there that your partner has any interest or non-interest in Fido?  Have you owned pets before Fido?  Have you established a pet trust – see previous column.

Now, I am sure that probate and family court judges have struggled with who gets ownership of Fido and there are probably shared custody agreements as to pets.  If there are, I would be interested in seeing any for my educational and legal benefit and review.

Lastly, and as an aside to the readers, let’s put the pets before the courts, and not the courts before the pets.

Copyright © Attorney Frank A. Smith, III/March 2012