In Massachusetts, how are family pets typically handled during a separation/divorce?

Pets are personal property and are treated as such by the courts in divorces or actions for separate support. In most cases, animals are property with no value. However, if the parties treat the pets as children, a Judge will usually treat them in the same manner. There is no formula for awarding possession of pets. Usually, a Judge should encourage the parties to work it out themselves. However, unlike children, custody of pets should not be based on a best interest standard. This means that the Judge won't make a decision of what is best for the animal. While we have animal cruelty laws which a Judge should consider, it is unlikely that either spouse would abuse the animal.

If there are children, a Judge would try to award ownership of the animals to the parent who has primary custody of the children. Usually, an argument is made that the children would be emotionally disturbed if they couldn't live with the children.

A Judge may consider other logical arguments as to awarding ownership of an animal. If the pet was a gift to one spouse or was owned by one spouse before marriage, then these factors may be the basis for deciding ownership. As pets are usually viewed as having no value, a Judge would look to some other logical basis for awarding ownership.

Unlike other property, a Judge may consider visitation rights for the parent who is not awarded the pet. Such visitation may satisfy the parties who acknowledge that both spouses care for the animal. An experienced divorce lawyer can assist in negotiations concerning pets and settling divorces.

Massachusetts has a law protecting animals from domestic abuse

On October 31, 2012, Massachusetts enacted a new law to protect domesticated animals from domestic abuse. In order to obtain an order under this new law, there must also be a protective order for the protection of people. Under this law, the court can order possession and care of a domesticated animal or issue a restraining order to prevent abuse to the animal. This law elevates animals from property to the status of a member of the family. Violation of the order is a criminal act.

I question the need for this new law as I have had cases in which Judges have issued orders to protect animals. When the Judges have issued orders of this nature, nobody questioned if the Court had the power to make the orders. The Judges never hesitated before making protective orders. Nevertheless, the Massachusetts legislature decided that Judges in Massachusetts need an explicit grant of power to protect animals. In my opinion, the only difference this new law makes is that we now have an official form to obtain a restraining order to protect animals. While lawyers may not have needed this new law, now people who assist pro-se litigants in obtaining restraining orders should also understand that animals can and should be protected.