ANIMAL WELL-BEING IN NH DIVORCES
On June 25, 2019, Governor Sununu signed House Bill 361, which takes effect on August 24, 2019. This bill amends RSA 458-16-a, the divorce property statute. The new language states that “Tangible property shall include animals. In such cases, the property settlement shall address the care and ownership of the parties’ animals, taking into consideration the animal’s wellbeing.”
New Hampshire becomes the first state in New England to adopt this standard and is now one of a handful of states that deal with the needs of animals by statute. This law has some teeth in it because of the “shall” aspect of the statute. Previously, New Hampshire property law did not accord animals any special status. For all practical purposes, there was no difference between an end table and the family pet. Courts had no legislative frame of reference or standards from which they could decide cases. Upon marriage in New Hampshire, all property becomes marital property unless a court finds otherwise, or there is agreement by the parties.
The new language addressing “the ownership, care, and well-being of animals,” is derived from Alaska’s groundbreaking law in AS 25.24.200(c), which took effect on January 17, 2017, and asks courts to consider the ownership of animals and their well-being in divorce cases.
Separately, the purpose of the language “tangible property shall include animals” differs from Alaska law, and makes it clear that animals are property, and do not have independent rights. The statute is broadly drawn, and does not have limiting language, so that courts may craft individual solutions for a variety of cases.
a) The Need for the Law: Pet Ownership is Widespread. Animals are often viewed as family members, and dogs and other social animals may suffer from the loss of human companionship. According to the 2012 U.S. Pet Ownership and Demographics Sourcebook, 365 percent of American households own dogs, 30.4 own cats, 3.1 percent own birds, and 1.5 percent own horses. In New Hampshire, 52 percent of households have pets. There are also specialty and “exotic” animals such as fish, rabbits, rats, ferrets, gerbils, livestock, and the like, which are owned in smaller, but significant household percentages. It is likely the most common application of the law will involve household or domestic pets.
b) New Statutes in other states. This new law follows the evolving trend recognizing that animals, while property, have needs that should be addressed. In 2019, both California and Illinois joined Alaska in enacting new legislation for divorce cases. In California, Family Code, §2605, states that pending a final resolution of a case, a court may assign sole or joint ownership of pet animals, taking into consideration the care of the animal, and a party can be ordered to provide care. The term “care” in the law “includes, but is not limited to the prevention of acts of harm or cruelty, and the provision of food, water, veterinary care, and safe and protected shelter.” In California, a pet animal “means any animal that is community property and kept as a household pet.” California community property standards apply.
In Illinois, §750ILCS 5/503 (n) states that “if a court finds that a companion animal is a marital asset, it shall allocate sole or joint ownership and responsibilities to the parties” “taking into consideration the well-being of the animal.” In Illinois, companion animals do not include service animals.
c) Guidance for Courts and Practitioners in New Hampshire. The point of the new law is to provide guidance. When evaluating a case, practitioners and courts alike might consider the following criteria: The cost of care, which includes feeding, grooming, health care needs, vet bills, and the like; dedication to the needs of the animal, such as who has shown greater care and affection; where relevant, who the animal(s) responds to, or bonds with; the presence of children, and their involvement, which may trigger a companion best interest of the children consideration; the lifestyle of the parties (travel away from home, for example) insofar as who can provide the best home and more stable environment; whether any changes to a parties’ residence precludes or limits them from having animals, whether any animals are therapy or support animals or service dogs as defined in RSA 167-D or other relevant statutes and whether animals should be solely or jointly owned, and whether the parties should share ownership time with the animal(s). This list is without limitation, and there may be other relevant factors to be considered. This kind of guidance may cut down on the use of an animal as a bargaining chip in a divorce. d) Commercial livestock
There are no words of limitation in the statute, and those dealing in commercial livestock of various types have separate laws, that govern care as well as humane slaughter and other conditions. To the extent any such animals are, or become marital property, governing statutes can be read together with general principles of equity, property and divorce law and be harmonized with this statute.
As society has evolved, attitudes towards animals have changed. Now animals in New Hampshire are recognized as different from other property, and following this progressive trend, their needs can be addressed and this benefits families. The Family Division can now clearly exercise jurisdiction over animals without a need for a domestic violence petition under the RSA 173-B, or filing of criminal charges for animal cruelty.
The author credits and thanks the Humane Society for its support for the language in the statute, as well as its efforts supporting passage. The author also suggests that practitioners and courts alike freely use the standards in this article to improve the law, and support the administration of justice.
Jay Markell, Esquire is a Senior Attorney at Family Legal, P.C., Concord, NH, who drafted the legislation, and testified on behalf of its passage at the legislature’s Child and Family Law Committee and the Senate Judiciary Committee.