Upon Divorce, Who Gets the NJ Pet? | Pet Custody

At a time when couples are having fewer children, they have more pets. These animals can provide emotional comfort, affection, and companionship. If a couple divorces, it is often critical to the parties who gets pet custody. The parties may genuinely care about and want to continue their relationship with their dog or cat, or one may seek custody to deprive their spouse of something the other party says s/he wants.

There are about 128 million households in the US as of last year, according to the Humane Society of the United States, and 90.5 million of them (or about 70%) include pets. There were nearly 690,000 divorces in the US in 2021, reports the federal Centers for Disease Control and Prevention. If 70% of these couples had pets, that’s an estimated 483,000 potential matters involving pet custody conflict.

Are Pets Property?

Pets are property in a New Jersey divorce but not subject to monetary compensation determinations like a vehicle or piece of art may be. They’re special property because of our emotional attachment to them. We have emotional bonds with our animals that we don’t usually have with appliances or furniture. If your dog is more faithful to you than your spouse, then it is your pooch who may deserve your love and attention.

How Are Pet Custody Disagreements Resolved Before a Divorce Trial?

If a couple disagrees about who gets a pet, there are probably other unresolved disputes involving child custody, child support, alimony, and division of property. If pet custody is essential to both spouses, they can, pun intended, horsetrade. That could be property, cash, or taking over a financial obligation.

As with a child, there can be shared pet custody where both make important decisions concerning the pet’s welfare, or one party may be satisfied with just visitation rights and spend less time with the animal. A mediator could help spouses find common ground and resolve disagreements over pets and co-parenting.

How Would a Judge Consider a Pet Custody Issue?

If one spouse possessed the pet before marriage, it probably will be considered personal property, not subject to equitable division through the divorce. It’s more complicated if the pet joined the family during the marriage.

If the parties can’t work out their differences, factors that may tip a pet custody decision in a party’s favor include:

• Who has a deeper bond with the pet and spends more time with it?
• Who has primary custody of children who want to spend time with it?
• Who is the pet’s primary caregiver?

Depending on the circumstances, shared custody may be ordered. If custody of a child is disputed, a judge will decide based on the child’s best interests. If custody of a pet is to be determined, the decision is more about what’s in the parties’ best emotional interests, not the pet’s best interests, but that certainly can be a factor in the decision.

Pre-Nups for Pups

A prenuptial or postnuptial agreement can spell out who’s entitled to what property (including pets) if the marriage ends. These are binding contracts created before or during a marriage. Though it may be difficult to discuss a marriage’s end, the cost of such an agreement will be far less than litigating pet custody during a divorce. These agreements have certain requirements to be legally enforceable so you should contact our office before putting one together on your own.

Pet Plans

Whether as part of an agreement or court order, there should be a plan in place so each party knows their responsibilities. The more vague a party’s obligations, the more likely there disputes will arise because they’re not met.

A pet plan should include:

• Identifying the pet’s primary owner/caregiver
• Living arrangements
• Scheduled visitation times
• Financial arrangements for the pet’s care
• Who’s responsible for veterinary care
• How the parties will make important decisions about the pet’s welfare
• What happens if one party is unwilling or unable to care for the pet

If you have children, you may want to mirror a parent’s time with the children and pet, which may benefit all involved.

Get the Help You Need From a Divorce Attorney You Can Trust

If your spouse and you can’t agree on who will care for your pet after your divorce or other important issues, hire a family law specialist attorney to represent you. Kingston Law Group attorneys are available when you need us. We are compassionate counsel and tough advocates.

Call 609-683-7400 or contact us online to schedule a near-term reduced fee initial consult at our Central Jersey offices in Princeton. We will listen to your facts, advise you on the law, and recommend the best path to social and economic justice for you. Call us today! You will be glad you did.

Post-NJ Divorce, How Difficult Should It Be to Prove Your Ex is Cohabiting With Another?

A recent New Jersey Supreme Court decision touched on two critical issues that affect many of those paying and receiving spousal support or alimony. Living with another (or cohabitating) could provide grounds to disqualify someone from receiving alimony. How difficult should that be to prove? The Court’s August 2023 decision made it easier to prove an ex is cohabitating with another post-divorce and, potentially, end their spousal support.

What is Discovery?

The decision involves spousal support, how it may potentially be cut off, and discovery. Discovery is part of the litigation process, where the parties obtain information from each other about facts and documents affecting their legal dispute. It can be information, documents, or interviewing parties and witnesses under oath by attorneys for both sides (called a deposition). What’s requested could be evidence used in the case or something that may help lead a party to possible evidence.  “Relevance” is not a valid objection to a discovery demand.

What is Alimony or Spousal Support?

Alimony is financial support given by one party to another. It can be granted when the parties no longer live together but are still married during the divorce process. As part of the divorce, a spouse may receive support for a limited time or until the other’s actual retirement post-age 67.

What is Cohabitation, and Why Does It Matter?

By NJ law, a party may lose their right to alimony (temporarily or permanently) if they cohabit with another. Under state statute, “Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.”

That same statute spells out the factors a judge should consider when deciding if a person receiving spousal support is cohabitating with another:

1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities
2. Sharing or joint responsibility for living expenses
3. Recognition of the relationship in the couple’s social and family circle
4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive, intimate personal relationship
5. Sharing household chores
6. Whether the alimony recipient has received an enforceable promise of support from another person…
7. All other relevant evidence

Not all of these factors must be met for a judge to find a person is cohabitating with another.

How is This Issue Normally Brought Up to the Court?

If the person paying alimony (the payor) learns the other party (the payee) may be cohabiting with another, they can ask a family court judge to amend the divorce order to state they’re no longer obligated to make payments. But how much evidence does the payor need to convince a judge they can stick their discovery nose into the business of the payee and their alleged partner?

The State Supreme Court Sets a Lower Bar for Payors to Pass

That’s the issue decided by the Court in Cardali v. Cardali, and the outcome is: Not a lot. The ex-husband raised the issue in the trial court, which responded that discovery wouldn’t be allowed since he hadn’t shown a “prima facie” case of cohabitation. He appealed the decision to an Appellate Court, which agreed with the lower court. The NJ Supreme Court overturned those decisions.

The payor, Michael Cardali, thanks to a private investigator, presented evidence relevant to some of the cohabitation factors but lacked evidence of a financial relationship between his ex-wife, Suzanne Cardali, and her alleged partner, Bruce McDermott. Michael argued he was in a “chicken and the egg” situation. Without discovery, he couldn’t obtain the financial information needed for the court to allow discovery.

The lower court denied Michael’s request for discovery to potentially change the couple’s property settlement agreement because he hadn’t shown a “prima facie” (or preliminary) case of cohabitation by not showing evidence concerning all the cohabitation factors a judge could consider.

The Supreme Court stated the party seeking discovery must “show cohabitation to the satisfaction of the (trial) court” and that it would be enough to provide sufficient evidence “which a trier of fact could conclude the supported spouse and another are in ‘a mutually supportive, intimate personal relationship’ in which they have ‘undertaken duties and privileges that are commonly associated with marriage or civil union.’”

The court ruled that the payor need only provide a “threshold showing…so that the privacy of the spouse or civil union partner receiving alimony is not invaded in pursuit of a baseless cohabitation claim.” It went on to state:

[T]he mandate that a movant present a prima facie showing in order to obtain discovery is not intended to impose a high bar….[T]he movant (the party seeking discovery) is entitled to an assumption of the truth of his allegations and the benefit of all reasonable inferences to be drawn from the evidence he had marshaled.…The movant’s burden at the preliminary stage is not an onerous one.’

Trial courts shouldn’t find the movant has failed to present a prima facie just because the other party disputes relevant, alleged facts. The court also found that, at this early stage in the process, it’s unfair to ask payors to provide facts supporting their claims for all the factors listed in the statute, especially financial information, which people usually closely guard.

Instead, if the movant presents a certification (listing facts) supported by competent evidence as to at least some of the relevant factors, and if that evidence, if unrebutted, would sustain the movant’s burden of proof as to cohabitation, the trial court should find that the movant has made a prima facie showing even if the spouse or civil union partner receiving alimony presents a certification contesting facts asserted by the movant.

As a result, if you believe your ex is cohabitating with another and you should no longer have to pay spousal support, the New Jersey Supreme Court just made it easier for you to find evidence that supports your belief.  If you have been accused of cohabiting with another and it just isn’t true, then you need excellent legal help on which to defend.

Contact Our Family Lawyers

If you would like to speak to a member of our firm about alimony or another family law matter, please get in touch with our Princeton office to arrange a consultation. We accept credit cards and offer general appointments from 9 a.m. to 5:30 p.m., Monday to Friday, plus evening appointments during the week by pre-arrangement only. Please write us online or call us at 609-683-7400. Call today.  You will be glad you did!