Edward R. Weinstein, Esq.

In a New Jersey Divorce, Who Gets the Dog?

Anyone who knows me personally understands that I am a “dog person.” I have the two most amazing French Bulldogs and they are like my children. As a divorce attorney for the past two decades, I have had countless client’s ask me, “who get the dog in my divorce?” Following please find how the New Jersey Family Court’s handle pets and divorce.

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Although there are no established laws on pet custody in New Jersey, the issue of who keeps the pet after a break-up or divorce is on the rise. 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, “judges are viewing pets more akin to children than dining room sets. They are recognizing that people have an emotional attachment to their animals.” However, despite this recognition, every state in the US still considers animals as property. Therefore, judges will not grant custody of a pet, but rather award it as property to either of the spouses. That was the issue in the case of Houseman v. Dare. Let’s explore.

In the case, the parties had a relationship with each other for thirteen years. In 1999 they bought a house together and in 2000 they engaged to be married. In 2003, the couple bought a pedigree dog for $1,500, which they registered with the American Kennel Club. Upon registering the dog, the couple decided that they both owned the dog. In May 2006, the boyfriend decided to call it quits. He wanted to remain living in the house and offered to buy out his girlfriend. The girlfriend agreed and in June 2006, signed a deed transferring her interest to her ex-boyfriend. When she left the house in early July, she took the dog with her.

The girlfriend stated that from the time of the break up, her ex told her that she could have the dog. Although the parties did not have a written agreement stating that she would have possession of the dog, the girlfriend alleged that the oral agreement was enough to bind him to his word. She stated that she had asked to enter into a written agreement, but her ex assured her that she could trust him and that he would not keep the dog away from her.

In February 2007, the girlfriend left the dog with her ex when she went on vacation. She arrived back the first week of March and asked for the dog back. However, the boyfriend refused to return the dog. This prompted her to file a complaint to enforce the parties’ oral agreement and have her dog returned back to her. Although the trial court claimed that the girlfriend provided credible and truthful testimony, it awarded possession of the dog to her ex. The court stated that the boyfriend would have to pay her $1,500, the amount that the parties paid to buy the dog in the first place, but that he would retain full possession and ownership. The girlfriend appealed and sought specific performance based on the oral agreement that she was the dog’s owner.

On appeal, the New Jersey Appellate Division held that the trial court erred by declining to consider the oral agreement between the parties. The court stated that agreements about property jointly held by cohabitants to be material in actions concerning its division and that they may be specifically enforced when that remedy is appropriate. Since the dog was considered personal property in the eyes of the law, the court should have considered the parties agreement, regardless of whether or not it was in writing.

The Appellate Division found that the girlfriend’s evidence was sufficient to require the trial court to consider the oral agreement and the remedy of specific performance. The value of the dog could be inferred from her testimony about its importance to her and her quick effort to enforce her right of possession and ownership. Awarding her $1,500 was not adequate to compensate for her loss; all she wanted was her dog back, which was priceless to her. Therefore, the Appellate Division reversed the findings of the lower court and remanded the case for further proceedings.

As pets continue to be at the center of tons of litigation, it is definitely possible that they will soon be treated more like children as opposed to personal property for purposes of determining which party will be granted custody in the event of a split. If you or a loved one faces a similar situation, please do not hesitate to contact my office to discuss your rights. Thank you.