The legal wheel is (slowly) turning toward recognition of companion pets as more than mere “property” in divorce proceedings. The traditional view that family pets are no different from tables or chairs is evolving toward acknowledging of their “special subjective value,” most notably in custody cases but also in divorce cases where no children are involved.

To that end, California recently enacted a statute authorizing courts to determine what is best for the animal based on primary responsibility for its care during the marriage. In Missouri, a Judge ordered a “bonding test.” In New Jersey, the situation is more muddled with some Judges still taking the traditional “property” view and others being (somewhat) more sensitive.

In a case I handled, the Judge ordered the divorcing parties, accompanied by their attorneys, to take the pet dog to a local football field, stand under opposite goalposts, and call the dog who was to be placed on the fifty yard line by the lawyers. After the dog ran to my client, the other party accused her of rubbing meat tenderizer on her clothing to attract the dog. My client stood her ground and kept the dog (I would not want to be the Judge hearing the case a second time).

Seriously speaking, in a society where pets are considered members of the family, and sometimes akin to children, the law is currently playing “catch up.” The scarcity of reported decisions notwithstanding, it is this author’s opinion that New Jersey courts will increasingly recognize the “special status” of pets in divorce proceedings by establishing a hybrid examination of the parties’ rights and the animal’s well-being.

If children are involved, the emotional nexus to a pet may be relevant to parenting time determinations. There is still a long way to go before courts or the legislature adopt formal standards, but as one Judge recently told me, “stayed tuned.”

For persons seeking to avoid the uncertainty, delay, and costs of litigation, a viable alternative is divorce mediation, which allows for more creative solutions like shared pet custody. Pet loving persons contemplating divorce are wise to consult with an attorney familiar with such issues before deciding how to proceed.