Nolo's Essential Guide to Divorce - Emily Doskow [115]
Pets
Anyone who has pets knows that relationships with our furry, feathered, or even scaly friends can mean a lot to us. And in a divorce, pets can generate conflict rivaling the toughest child custody battle.
Pets are legally considered property, and courts generally treat them as such at divorce. Most judges don't rule on "custody" but instead make a simple ruling that the animal belongs to one spouse. (Overwhelmingly, that spouse is the wife.) Recently, however, some judges have issued orders that provide for shared custody of petsmost often dogs-and that consider the best interests of the pet, not just the desires of the owners. Some have even reviewed "bonding evaluations" done by pet experts who observe both spouses with the dog and report to the court which human has the stronger connection with the dog.
Of course, you won't be surprised to hear that the best way to deal with your pet at divorce is to negotiate an agreement that either allows one of you to keep the pet or provides for sharing on an agreed-upon schedule. If you really can't do that, and if you feel really strongly about this issue, you can push for a shared custody order and take your chances in court.
Lawyers specialize in pet issues in divorce. Many state bar associations have animal law sections, and their members would be a good bet if you want someone to represent you in a pet custody fight. You could also try an Internet search or check out the website of the National Association for Biomedical Research, Animal Law Section, at www.nabr.org/animallaw. The site lists court cases involving pets and divorce, all of which list the lawyers involved.
Genetic Material
More and more couples are using the techniques of assisted reproduction-medical intervention in the conception of childrenas they seek to have children. One widely used method is in vitro fertilization, where embryos are created outside a woman's body and then implanted in hopes of establishing a pregnancy. This procedure often results in unused embryos that are stored for possible later use. Ideally, the couple creating the embryo signs an agreement at the time of fertilization about disposition of any unused embryos. However, if they don't, and then the couple divorces, a difficult legal issue arises about who owns the embryos and what should be done with them.
Questions of social policy and medical ethics make the legal questions complex. In some states, doctors are prohibited from destroying genetic material and may only return it to the couple who created the embryos (who may destroy it themselves), implant it in the woman whose genetic material it is, or implant it in the womb of another woman with the donors' permission.
A few divorcing couples have gone to court over who gets ownership of stored embryos, and also to litigate the question whether one spouse can use the stored embryos after the divorce to establish a pregnancy and have a child, over the objections of the other spouse. In general, courts have concluded that one divorcing spouse can't use stored embryos to procreate without the other's permission.
If ever there were a situation where a knowledgeable lawyer is required, this is it. If you have stored embryos and don't know what to do with them, look for a lawyer who specializes in assisted reproductive technology by looking on websites related to infertility or surrogacy. Or use any of the resources listed in Chapter 16 to find a lawyer.
What to Do With a Family Business
If one of the 23 million small businesses in the U.S. is among your marital assets, you're in for some special headaches. Trying to run your business during the upheaval of divorce and trying to decide its future while your own future