For some people, pets1 are equally, if not slightly less, important than children,2 when it comes to divorce.
In Wisconsin, pets are property and treated no different from the TV, car, or lawn mower. Some states have started to consider pets in a separate regard than simply property. There are laws that address custody and shared placement of pets. For example, an Alaska law requires the judge to consider the “well-being” of the pet in addressing the ownership outcome (the same standard in Alaska for child custody cases).3
Pet Considerations Elsewhere
Other states have begun to modify their property laws to provide a different standard when addressing companion pets (service animals are generally exempt from property division). In California, a companion pet is still considered to be community property, but the law sets guidelines for judges in addressing who gets the pet (such as: who walks the dog, feeds the pet, takes the pet to the vet, etc.)4
In Illinois, the law allows a court to grant “sole or joint” ownership of a companion pet after considering the “well-being” of the pet.5 Some Illinois attorneys have begun to argue the same factors in the child custody and placement statute when making ownership allocation arguments as to the companion pets.
"If there are no dogs in heaven, then when I die I want to go where they went." – Will Rogers.
And in New York, the state Legislature recently enacted a law that allows the court to consider the “best interests” of a companion animal when awarding possession.6
Internationally, this is becoming an evolving phenomenon as well. In 2022, a new law in Spain was introduced that would allow a court to grant custody (sole or joint) or a companion pet after considering the “well-being” of the pet.7
Addressing Pets in Divorce in Wisconsin
Considering the law in Wisconsin, it may not be necessary to change the law to address issues related to pets akin to children.
The current property laws do not necessarily restrict how a court is to consider the division of property, or the factors that a court may consider in property division that would restrict considering the well-being of the companion animal in the property division.8
Some attorneys have begun drafting premarital property agreements that deal specifically with issues pertaining to pet ownership: shared custody, shared placement, shared costs, etc., essentially to avoid the courts.
Practical Considerations
A practical consideration in addressing companion pet issues is: how are these orders or agreements to be enforced?
Comm. Mark Fremgen, John Marshall 1990, has been a family court commissioner since 2015 in Winnebago, Jefferson, and most recently, Dane counties.
Once the judgment has been entered, property division is final and may not be modified,9 except in very few instances.10 Such judgments are subject to enforcement by the court’s inherent contempt powers and Wis. Stat. chapter 785.11 This authority, however, is limited, and the prospects of prenuptial agreements that envision a shared placement of a companion pet may be a more difficult situation to enforce (presuming it somehow was approved by the court and incorporated into the Judgment of Divorce).
It is one thing to enforce a judgment that has granted all rights and title in property to a party, and quite another to enforce an agreement that treats a companion pet similar to a child and require the parties to share placement, share in variable or uninsured vet bills, and comply with other conditions related to the alternating placement arrangement for the pet, without some expressed legal authority to do so.
Absent a legislative change similar to those in Alaska, California, Illinois, and New York, the Wisconsin courts do not have the authority to address the circumstances surrounding the use, possession, control, or maintenance of the property once it is final (except in a rare Wis. Stat. section 806.07 motion).
According to the American Kennel Club, more than 60% of Americans have a companion pet. More and more, millennials in co-habitation relationships seem to gravitate toward being “pet-parents” versus the traditional parent model for a number of reasons.
Wisconsin law does not explicitly recognize pet ownership as a sub-category of custody and placement like some other states, but with regard to property division is not precluded from considering the companion pet’s well-being with one party versus the other as a factor under Wis. Stat. section 767.61.
Not Enforceable
Until the law changes in Wisconsin, however, this is the extent to which the unique relationship that we have with our pets will be considered by the courts. Absent some legislative change, despite an agreement (pre- or postnuptial), a shared custody or placement arrangement is not enforceable in Wisconsin.
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Endnotes
1 As a long-time dog owner (five total thus far in my lifetime) I tend to lean toward dogs than other pets – no offense to the cat owners.
2 From personal experience, my preference for children over pets is often subject to day-to-day changes, and related to their developmental stage (for example, the “terrible twos” or teenagers).
3 AS section 25.24.160 (2017).
4 AB 2274 Division of Community Property: Pet Animals (2019).
5 Sec. 5/503(n) Illinois Marriage and Dissolution of Marriage Act (2019).
6 SB S4248 (2021).
7 Spain has joined, France, Germany, Switzerland, Portugal, and Austria, as European countries that recognize a special status for pets in divorce proceedings.
8 Wis. Stat. § 767.61 (3)(m) Property Division. “(m) Such other factors as the court may in each individual case determine to be relevant.” Although the factors under section 767.61 seem to address how or why a court may deviate from the presumed equal division of marital property.
9 Krieman v. Goldberg, 214 Wis.2d 163, 173 (1997);
Winkler v. Winkler, 282 Wis.2d 746,757 (CA 2005).
10 See Wis. Stat. § 806.07.
11 The trial court has broad authority to enforce its judgments in family court proceedings and may employ any remedy customarily available to courts of equity and appropriate to a particular case.
Courtney v. Courtney, 251 Wis. 443(1947) ["The court in a divorce proceeding is authorized to make and award such judgments, decrees, and orders as justice may require and issue execution and other writs and processes as may be necessary to carry into effect the powers given by statute."
Id., at 453. The trial court may make orders as necessary to give effect to the divorce judgment and to protect the plaintiff from the loss occasioned by the inaction of a non-compliant party. Absent such authority, the judgment would be of no effect.
Rotter v. Rotter, 80 Wis.2d 56, 63 (1977).
