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Pets – Property or Something More?

person with two dogs on couch

A question family lawyers often grapple with in divorce proceedings is: “who gets to keep the family pet?” The answer has always been far from consistent. Occasionally, parties will choose to negotiate a “custody” plan in their Separation Agreements that set out who will get the pet and when. However, often the parties are unable to come to such an agreement. While pet owners see their animals as family members; unfortunately, probate court judges historically, have not shared that sentiment.

According to Massachusetts laws of equitable distribution applicable to divorce, your pet property and any property in a divorce action must be distributed to one party or the other. It cannot be shared between the parties (outside of a separate arrangement otherwise agreed upon by the couple.) While this is still the practice in Massachusetts probate courts, the Superior Court recently took a different approach in a new case, Lyman v. Lanser, which evolved the court’s view of pets and property.

In this case, the Plaintiff and Defendant owed a Pomeranian named Teddy. They made an agreement at the start of their relationship that if they were to break up, they would share equal “custody” of their dog. As this story goes, they inevitably ended things but proceeded to honor their original agreement and shared Teddy harmoniously. However, in January 2022, the Defendant moved into a new apartment; and the parties agreed to defer their sharing agreement for Teddy to spend extra time at the new apartment to acclimate to his new, part time home. Two months later, Defendant cut off all communication with the Plaintiff and refused all access to the parties’ dog.

Plaintiff filed claims for breach of contract and conversion with the Middlesex Superior Court. In relation to damages, plaintiff was looking solely for specific performance, i.e. enforcement of Defendant’s promise to share possession/custody of Teddy.

Superior Court Judge Frison granted a preliminary injunction and ordered that the shared agreement continue for alternating, two-week intervals. However, Appeals Court Judge Marguerite T. Grant concluded that Judge Frison had abused her discretion by “effectively treat[ing] the dog… as if it were the parties’ child.” Interestingly enough, the Appeals Court now sides with the original decision, noting that tenants in common are free to make binding agreements governing their respective rights in personal property even without a formal agreement.

Attorney for Plaintiff, Jeremy M. Cohen of Boston Dog Lawyers, makes an excellent point in stating that there is also helpful language in the Commonwealth’s criminal law, M.G.L. c. 140, §174E(f)(1), which countenances “harm to a dog’s physical or emotional health.” Which certainly rings true. After all, if dogs are protected on a criminal level, shouldn’t they have some protection when it comes to their emotional value and well-being?

Obviously, we can’t get time back; and the two years Plaintiff went without seeing his dog is impossible to quantify. Therefore, the Appeals Court’s order for specific performance is quite the win for Plaintiff in this case.

It is important to note that the Appeals Court panel stated that its decision does not alter the status of pets in divorce proceedings; while we don’t yet know how the Probate Courts will react to this judgment or if they will eventually follow suit, this is an interesting case for everyone, especially pet lovers, to consider.

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