Should you put your pets in your prenup?

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Should you put your pets in your prenup?

For the vast majority of #millennials, animals have replaced children. Instead of going through the time, effort, and expense of reproducing, we outsourced the whole thing to cats and dogs, who now reside in our homes in record numbers.

This can potentially lead to problems if you decide to "grow up" and "get married" – a.k.a. "give into pressure from mom and dad" and "enter into a legal and spiritual union with a 50% success rate." If the marriage ends up falling apart, figuring out where Fido and Fluffy are going to live can be difficult, taxing, and contentious. One survey of divorce lawyers found that 27% have noticed a notable increase in the number of couples who fight over custody of their pets, with the theory being that some couples are taking advantage of the emotional nature of pet ownership to use pets as bargaining chips in their divorce proceedings.

Despite this noted increase and some well-publicized cases, "people rarely go through a custody battle for their pets," says Regina DeMeo, attorney at law. One reason for this is that the law is "very clear cut" when it comes to pets. Is your name on the title? Then that’s your pet – there’s "no wiggle room in court." (Even if there’s no piece of paper proving ownership, courts are generally smart about figuring out ownership. If there’s evidence that you had Fido before you ever met your ex, then that’s obviously your dog.)

You can be a lot more creative outside the courtroom, negotiating directly with your ex and their lawyer. DeMeo told me that, while this process is emotional, it usually "comes down to logistics." Did you move to a bachelor pad in a no-pets apartment? Looks like Fluffy is staying with the ex.

Shared custody of an animal is also not uncommon, especially if the animal was a gift for your human child. DeMeo told me that while it’s common for dogs to travel with the child from home to home, cats usually stay with one parent or the other.

Of course, instead of waiting until after your marriage fails to figure out pet custody, you could pre-empt the whole thing with a very romantic prenuptial agreement. The decision to write a prenup in the first place is a personal decision, and I’m not going to tell you that you should write a prenup just so you can make sure you keep Fluffy after the potential contentious divorce. You might want to write a prenup, however, if your animal is worth a good chunk of change.

While pets often have a lot of emotional value, they’re rarely worth a lot of money. (If you told me that I could get a million bucks from selling my terrible cats, I’d do it tomorrow. [One last night to say goodbye.])

There are exceptions, however. DeMeo cited two common examples: horses, which can often be worth thousands of dollars, and purebred dogs.

While you may think you’re protected because you have a piece of paper that says you’re the owner of said animal, DeMeo warned me that, depending on the state you live in, your spouse could have a claim to your animal.

For example, let’s say you breed purebred dogs at your home. While you may be the owner of the dogs and the owner of your dog breeding business, your spouse may be able to claim "sweat equity" – basically, a marital interest in your business – because they helped you run it. If your spouse ever fed the dogs or took them out for walks, or helped you take care of and sell the puppies, they may be able to make a claim on your animals.

In any situation where an animal is the foundation of your business, it’s worth writing some custody rules into your prenup. For the rest of us, however, writing an animal into a prenup is probably overkill, and doesn’t necessarily account for life changes that are going to happen five, ten, or twenty years down the line. Plus, by that point, your state may have enacted new guidelines that allow judges to "consider the best interest of the animal" when deciding pet custody, allowing you to prove once and for all that you are truly the Best Dog Dad Ever.