Euthanizing Pets During Divorce: It’s Complicated

New York Law Journal

On May 19, 2018, my family’s golden retriever (Scarlett) of 13 years, collapsed. 30 minutes later, after I had told my children to say their tearful goodbyes, Scarlett was at the veterinarian’s office, put to sleep for good.

The imagery around the series of events leading up to the end does not go away, and I’m confident that anyone reading this who has been through the heartache of knowing when your pet has nothing more to give also remembers the details of that last day.

As I went back through the emails and text messages of May 19, 2018, nowhere did I find language along these lines: “Today we are saying goodbye to a wonderful piece of chattel.”

Indeed, that would be ridiculous. Instead, I found emails and text messages that included this phrase: “She was a part of our family.”

It is that sentiment—whether for those of us who have owned (or own) dogs, cats, or other pets that become part of our daily lives—that brings us to a discussion of Judge Edmund M. Dane’s recent decision in C.M. v. E.M., 2023 NY Slip Op 23369.

C.M. concerned whether or not the euthanasia of a family’s dog during the pendency of a matrimonial action is violative of the automatic orders. The court held that euthanasia of a companion animal without the other party’s consent is not violative of the automatic orders (“While the defendant may have other remedies at law—both civilly and criminally—the narrow and drastic remedy of contempt of court…is not one of them”).

The parties were married in 2002, having two children in common. The defendant (husband) argued that “B.” was an emotional support dog “whose custody had not been determined” and that his wife (plaintiff) “did not discuss B.’s medical condition nor provide the opportunity for the defendant to spend time with B. before the dog’s death.”

Plaintiff argued that B. “was not an emotional support animal, could no longer walk without a severe limp, had ‘too many’ masses to count, and was on significant pain medication since July 2023…she was given a prescription for a tranquilizer for the dog, transported the dog to the vet, and at the vet appointment, the dog lunged at the vet…the vet recommended euthanasia.”

The defendant claimed he was never informed of the vet’s recommendation, and there was “no urgent need for B.’s euthanasia.”

In reaching its decision, the court noted, inter alia, the following:

1. Text of the Automatic Orders: The section of the Domestic Relations Law that codifies the automatic orders “is entirely devoid of any reference to companion animals…this Court is left with insufficient guidance to determine whether or not a companion animal is included within the statute.”

2. Legislative History of the Automatic Orders: A review of the Sponsor’s Memo of an Assembly Bill reflected that the justification of the automatic orders was to “prevent both parties from dissipating assets” (emphasis in original). Accordingly, the Court concluded that the underlying intent of the automatic orders was to “preserve the financial status quo of the parties.”

The court then analyzed the text of the fifteenth equitable distribution factor which requires matrimonial courts to consider the best interest of a companion animal in awarding possession of same. It is this aspect of the C.M. decision that highlights just how challenging it has been, and is becoming, for matrimonial judges to try to parse through pet disputes (the scope of which continues to evolve):

To this Court, the Legislature’s insertion of the companion animal section in the equitable distribution of property portion of the statute while requiring a best interests analysis creates more confusion than clarity. Questions naturally come to mind. Was it the intent of the Legislature to continue to treat animals as property? Was it the intent of the Legislature to provide animals with a heightened level of protection? Did the Legislature truly intend to shift the focus away from treating companion animals like property? Can a matrimonial court award ownership of the companion animal, or is the court limited to awarding possessionGiven that the drafters of the statute failed to include any definition—or guidance—as to how courts are supposed to determine ‘best interests’ of animals, the Court is effectively left in a legal vortex to figure it out on its own. That question, however, is not before the Court today (emphasis added).

And so, the fundamental question is whether or not “B.” is an “asset” or “property.” Without that classification, the court found, the defendant’s application seeking to hold plaintiff in contempt for violating the automatic orders fails.

In a thoughtful analysis, the court opined that it was the intent of the Legislature “to shift away from treating companion animals as property or an asset notwithstanding its placement in the equitable distribution portion of property section of the statute…Therefore, B. cannot be classified as either ‘property’ or an ‘asset’ for the limited purpose of treatment under the automatic orders.”

As to the practicalities, a “civil contempt penalty would have been designed to modify the plaintiff’s behavior or coerce the plaintiff into performing an act. The unfortunate reality here is that the euthanasia of B. has already taken place” (emphasis in original).

Again, however the court was careful to note that if the plaintiff, as defendant alleged, intentionally put B. to death when same was unnecessary, that conduct “may constitute a Class A misdemeanor, provided the necessary elements are met…The court makes no finding in this regard…. The court makes this point to punctuate its conclusion that a companion animal is not an asset with protection under the automatic orders.”

Perhaps the simplest way to assess the issue is this: Would you ever consider listing a dog, or a cat, as an “asset” on a statement of net worth? If so, would you list the pet under the heading “household furnishings,” or would you list the pet in the “other” assets category? I suspect you would do neither.

In the end, I can’t say one way or the other if those who drafted the automatic orders, and/or those who drafted the legislation that would mandate a determination about pets as an equitable distribution factor, could have ever foreseen the possibility of the issue faced in C.M. coming before a matrimonial judge.

My concern is that the number of pet-related issues that were not foreseen or considered are only going to increase. A case in point: I believe we are a stone’s throw away from seeing pet relocation cases. Then what?

How are matrimonial courts to decide whether or not it is in the best interests of Roxy the Australian Shepherd to live in Queens versus Massapequa? I hope this is not in our future, but it very well could be. Until such time, as Scarlett’s breeder told me on that heavy-hearted day: run free at the Rainbow Bridge, beautiful B.

"Euthanizing Pets During Divorce: It’s Complicated," by Alan R. Feigenbaum was published in the New York Law Journal on January 8, 2024.

Reprinted with permission from the January 8, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.