Difference between revisions of "Get Custody of Your Pet in a Divorce"

#Read the statutes. You can usually find a link to your state’s statutes on the webpage for your state’s legislature, highest court, or governor’s office. Find the statutes dealing with divorce, community property, equitable distribution, or property distribution. These will usually be found in a chapter entitled something like domestic relations or divorce. These statutes will tell you how your state defines marital property versus separate property and the factors your state considers when distributing marital property.<ref name="rf1"> http://www.leginfo.ca.gov/.html/fam_table_of_contents.html</ref>

#Search case law.  Frequently, terms and phrases in statutes will need to be further defined. Courts make these definitions when cases come before them. Google Scholar has recently added a case law database you can use to search for key phrases to see how courts in your jurisdiction are interpreting each factor. You may want to try searching on keywords such as: <ref name="rf2"> http://legal-dictionary.thefreedictionary.com/Case+Law</ref>

#Compromise with each other. In trying to make an agreement, try to bargain by giving up your rights to property your spouse would like in exchange for the pet. This is a compromise agreement, and courts are likely to accept agreements between the parties unless they are grossly unfair.<ref name="rf3"> http://family.findlaw.com/divorce/settlement-agreements-and-court-approval.html</ref>

#Use mediation. If you are unable to compromise on your own, you will likely be required to go through mediation for your divorce. In mediation, a neutral third party attempts to bring the parties to an agreement on their issues. There is no need to bring any evidence because the mediator does not make any decisions. The intent is for both parties to compromise a little bit so that the issues can be settled without the need for a trial. In most states, statements made in mediation cannot be used in court, and the mediator makes no statements to the court other than whether mediation was successful. In other states, the mediator will make a recommendation to the court as to how the court should rule on the issues. Be sure you are aware of how mediation is treated in your state.<ref name="rf4"> http://dictionary.law.com/Default.aspx?selected=1233</ref>.

#Determine how a court would likely rule. In many states, if the pet was yours prior to the marriage, it will likely be considered separate property and not subject to property distribution. It often helps to know how a court is likely to rule while you are negotiating agreements, whether with or without a mediator. If it is likely a court will award the pet to you, you may have more leverage in negotiations. Be aware, however, that some courts order the sale of property that is hotly contested. If marital property was used for major expenses related to the animal, your state may deem a previously-owned pet to have become marital property. If your pet is deemed marital property, there are a number of things you can show a court to make it more likely to award the pet to you:<ref name="rf5"> http://www.forbes.com/sites/jefflanders/2014/04/17/how-are-pets-handled-in-divorce/</ref>

#Put the agreement in writing. Any agreement needs to be reduced to writing. Even if your agreement does not settle all issues in your divorce, the agreements that have been made should be reduced to writing and submitted to the court so that the court only has to be concerned with those items in dispute.<ref name="rf3" />

#Locate and complete the appropriate forms. Most states provide pre-prepared forms for family law. These can usually be found on the website for your local court and/or your state’s highest court. You can often get assistance finding and completing forms at your local self-help center. Some states provide an interactive online program that creates your documents tailored to your particular circumstances.<ref name="rf6"> http://www.judicial.state.sc.us/forms/searchType.cfm</ref>

#*You can arrange for a friend or relative (not involved in the case and over 18) to serve them by a method listed in the civil procedural rules. Be aware this person will need to complete a Return or Proof of Service and may need to testify as to how they served the documents.<ref name="rf7"> http://legal-dictionary.thefreedictionary.com/Service+of+Process</ref>

#Wait for the answer. In most states, the other party has 21 or 30 days from the date s/he was served with the petition to file a written answer. You should receive a copy of the answer, but if you do not, call the clerk and ask if it has been received. If no answer was filed, consider filing for a Default Judgment.<ref name="rf8"> http://family.findlaw.com/divorce/answering-the-divorce-dissolution-petition.html</ref>

#Read the Rules of Evidence for your state. Be sure you understand them. If you have any questions about them, it is worth paying an attorney for assistance or instruction. Ensure you have admissible evidence to show the court that the pet is either your separate property or that you should be awarded the pet in the property distribution.<ref name="rf9"> http://kslegislature.org/li_2014/b2013_14/statute/060_000_0000_chapter/060_004_0000_article/</ref>

#Schedule your hearing. Contact the clerk of the court to schedule your hearing. You should be able to estimate to him/her the length of time you anticipate. The clerk may schedule you for a scheduling conference or hearing, during which time, the judge will ask questions to be sure all issues are ready for trial and to determine how much time will be needed for the hearing. You will need to provide notice of the hearing to all other parties. You can do this by preparing a Notice of Hearing or by sending a letter to the other party giving all details of the hearing (date, time, location, length of time, judge). Ask the clerk if your court provides a form for this. Issue any subpoenas necessary for any witnesses.<ref name="rf10"> http://www.mnd.uscourts.gov/FORMS/court_forms.shtml</ref>

#Attend your hearing. On the day of your hearing, be sure you are dressed cleanly and respectfully. If you can wear a suit, do so. If not, clean clothes that would be suitable for the office are acceptable.  If you can only wear jeans, be sure they are clean and in good repair. Do not wear shorts, flip flops, tank tops, miniskirts, or sagging pants. Arrive early. Speak only to the judge, not to the opposing party or their attorney.  Address the judge with respect, calling him or her “Your Honor” or “Judge”. Stand when speaking. The case will likely proceed as follows, though this can vary under some circumstances:<ref name="rf11"> http://www.fljud13.org/Portals/0/Forms/pdfs/fiu/12rules.pdf</ref>

#Consider appealing an adverse ruling. After the judge’s ruling, the prevailing party is usually tasked with preparing any orders. If you submitted proposed orders earlier, the judge may use those. The judge may also have stacks of blank orders on the bench that s/he fills out and signs while making the ruling. If you are tasked with preparing the order, locate the appropriate order form from the link you located above and complete it. Make 2 copies. File the original with the court, and send a copy to the other parent. Keep the other copy for your records. Once the judge signs the order, you can get a copy of the signed order from the clerk. If you disagree with the judge’s ruling, you have generally 30 days to file a Notice of Appeal with the trial court. Check your state’s rules of appellate procedure for these deadlines.<ref name="rf12"> http://www.supremecourt.ohio.gov/LegalResources/Rules/appellate/AppellateProcedure.pdf</ref>