For Gabriel Cheong, the most stubborn issue to resolve in one recent divorce case involved a mule. The Quincy lawyer was accustomed to working with litigants who were at odds over custody of a family pet. But the breakup of a couple who owned a farm proved to be a real challenge.
Cheong helped the ex-spouses find new homes for their horses after the dispute forced the sale of the farm. It was harder to “rehome” the old mule.
That might seem like an extreme example of a divorce settlement. In truth, however, few things will cause a parting couple to dig in their heels deeper than a mutually-cherished, four-legged companion, according to divorce lawyers. They say disagreements over custody are on the rise, and more are recommending prenuptial provisions for pets: “pet prenups.”
One thing that fuels the issue is that, in the eyes of the law, pets are considered property, not dependents. Unlike child custody cases, a pet’s best interests are not typically considered in court.
In the end, the family member who often suffers most in a divorce is the dog, say several experts.
“If an animal is being used as a tool to get at each other, like people use children in custody [disputes],” says Tracie Hotchner, the Vermont-based “Radio Pet Lady,” “they’re not putting the animal’s needs first.”
Christian Lau, coauthor of “The Dog-Lover’s Companion to Boston,” says he’s seen “cut and dried” cases in which one former partner bows out, leaving the pet to his or her ex. He’s also seen divorcing couples who can’t agree on anything.
The rancor surrounding pet custody disputes was underscored in June when celebrity couple Melanie Griffith and Antonio Banderas announced their divorce. Though the couple claimed they had jointly decided to end their “almost twenty years marriage in a loving and friendly manner,” Griffith soon made it clear she intended to fight for custody of the couple’s three dogs.
“There are plenty of people like that, and for good reason,” says Lau. “Our pets get very attached to us, and we get very attached to them” — and are often willing to fight for them.
About 27 percent of those responding to a 2014 survey by the American Academy of Matrimonial Lawyers noted an uptick in pet-custody fights over the past five years — with dogs being far and away the most disputed family pet.
But some judges refuse to hear arguments about pet custody at all, say lawyers, leaving it to the two parties to settle on their own.
As the law stands, it’s not the judge’s responsibility to determine which party was more invested in the health and well-being of the pet — who took the dachsund for more walks, or to the groomer’s.
“If you’re deciding who keeps the car,” explains Cheong, “you don’t say, ‘He never changed the oil,’ or ‘He never washed it.’ ”
But some judges “will indulge you,” says Jared Wood, a partner at Goldstein, Egloff, Ramos and Wood in Newton. He notes the retired Middlesex County justice whose own dog sat by the bench every day in court.
‘If an animal is being used as a tool to get at each other, like people use children in custody [disputes], they’re not putting the animal’s needs first.’
“He would have been a judge I’d be comfortable having a pet dispute in front of,” Wood says.
Despite occasional efforts — such as legislation in San Francisco that redefines pet owners as guardians and a bill introduced in Wisconsin, reportedly the first in the nation, designed to institute guidelines about pet-custody battles — the law has not caught up with the enhanced family roles of pets in recent generations.
“Pets were previously treated as livestock,” says Wood. Now, he says, “How many pets wear Halloween costumes each year?
“The status of the pet in the family really has elevated in our eyes. But the law still views them as chattel.”
Given all the potential legal snarls, some divorce lawyers are increasingly recommending the “pet prenup.”
“I think a prenup involving a pet brought into a marriage is a great idea,” says Wood. “If I had a dog or a cat for a number of years [before entering a relationship], I’d want assurance.”
Figures on pet prenups are hard to come by as the concept is relatively new. Wood says he’s only handled one such case in the last few years; Cheong says he’s worked on a handful.
While the pet prenup may seem like a sensible solution, some animal lovers view it as less than optimal.
Hotchner, author of “The Dog Bible: Everything Your Dog Wants You to Know” and “The Cat Bible: Everything Your Cat Expects You to Know,” is no fan of arrangements that allow for joint custody or visiting rights.
“It’s complicated,” she says. “Do you share the same leash, or keep one at both places? Is the dog or cat confused or disoriented? One thing animals really like is consistency. If you really care about the welfare of the animal, then one person needs to keep the dog or cat.”
But some pet owners are intrigued.
“I love that idea,” says Marcie Bergan, a regional director for Habitat for Humanity who lives in Seabrook, N.H. When her first marriage ended in divorce, “I left him the house, the cars, everything. I took the dog.”
Cheyenne, her beloved Rhodesian Ridgeback-pitbull mix, died last year at 14. Newly engaged, Bergan has been making arrangements with her fiance’s ex-girlfriend, who has court-ordered custody one weekend a month of the former couple’s 10-year-old golden retriever, Jackson.
Bergan says she would “definitely” consider a pet prenup: “If somebody wasn’t willing to sign one, they’re probably not the best person for me.”James Sullivan can be reached at firstname.lastname@example.org. Follow him on Twitter @sullivanjames.