Pets and Divorce

The New York Times published an interesting article about the fate of pets in divorce proceedings, Following Alaska's recent enactment of a statute guiding the custody of pets in divorce, Rhode Island now has pending legislation requiring the court to  “consider the best interest of the animal” in a divorce or separation. See: https://nyti.ms/2nGCQm7

Alaska requires the well being of the pet to be considered in divorce

Washington Post reports that Alaska has become the first state to require courts to take into consideration the well being of the animal in divorce.  Judges now have the power to award joint custody.  This is truly ground breaking because all other states treat animals in the same way furniture is treated, and pets are simply part of the property distribution.  We hope more states follow suit. 

Pre-Nups Should Include Pets

The Boston Globe reports that disagreements over pet custody are on the rise. Approximately 27% of divorce lawyers surveyed have seen an increase in pet custody fights over the last five years.   Because the law considers pets property, in the event of a divorce, courts do not consider what is in the best interest of the pet.  It just does not matter who spent more time with the pet or who took more responsibility.  Some courts require the litigants to negotiate a resolution, making the animals easy fodder for emotional manipulation. To avoid this heartache, you can create a prenuptial agreement to cover your four legged family members.  This terms of the document will be enforced in the event of a divorce.   One person quoted in the article stated  “If somebody wasn’t willing to sign one, they’re probably not the best person for me.” 

Appeals Court Affirms Award of Veterinary Expenses for Injured Dog, but Extends Prohibition of Emotional Distress Damages.

The appeals court affirmed a lower court award of veterinary expenses to owners trying to save their small dog after an unprovoked attack by an unleashed German shepherd.  The Bichon Frisé had severe internal injuries and external wounds requiring emergency surgery to the tune of $8,000. In addition to vet costs, the court also awarded the replacement value of the dog. Because Massachusetts law considers dog personal property, the owner of the German shepherd argued that damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog's injuries. See Irwin v. Degtiarov. The appeals court found that reasonable veterinary costs can be recovered even if they exceed the market value or replacement cost of an animal injured by a dog. Whether particular veterinary costs are reasonable, and whether it is reasonable to incur them, will depend on the facts of each case.  Among the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner's household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue. Once again, the appeals court affirmed that although the owner's affection for the animal may be considered in assessing the reasonableness of the decision to treat the animal, the owner cannot recover for his or her own emotional distress. Nor is the owner entitled to recover for the loss of the animal's companionship. An earlier appeals court case stated that emotional distress damages were not available because in that case the owner did not witness the damage. See Krasnecky v. Meffen.  Despite not being a question in this present case, the court suggests even if an owner witnesses the attack, he or she cannot get emotional distress damages.  The Supreme Judicial Court has yet to take up this question, but this ruling seems to close the door on the possibility of emotional distress damages.

FDA considers regulations on pet food

Inspector, my hot dog has legs!
Photo credit @Mosman Council on flickr; used under CC license

When you give your pet a treat, how do you know it's safe?

A 2010 food safety bill gives the federal Food and Drug Administration (FDA) the authority to begin regulating pet food more stringently. After dogs across the country became sick from eating tainted jerky treats from China in 2007, the FDA began a deeper investigation. It already has the authority to make rules about what ingredients pet food may contain, but it does not inspect the products. Now, it wants to promulgate regulations that would allow it to do more to catch tainted animal food before it gets to consumers. 

The proposed rules would cover contamination by chemicals, pathogens, and other contaminants, in an attempt to reduce food-borne illnesses. The regulations would also cover feed for farm animals, but would not affect antibiotic use on industrial farms.

To learn more about what the FDA currently does to ensure pet food safety, and to give comments on proposed regulations, please visit its website.

NY Court finds lack of authority for breed specific prejudice.

In a victory for pit bull dogs, on April 4, 2013,  the New York Supreme Court, Appellate Division, dismissed a judgment from the lower court finding a pit bull type dog dangerous by virtue of its breed.   The case is based on an incident in November 2011, when a pit bull who had a collar on, was wearing a harness and was on a leash was attacked by a German Shepherd who broke loose from its tether.  The dogs fought and both were injured. The pit bull was determined to be a “dangerous dog” and its owner was ordered to pay a portion of the shepherd's veterinary bills even though it remained leashed throughout the incident.  The pit bull's owner appealed. The upper court noted that the law defines a dangerous dogs as a dog that “without justification” attacks a person, companion animal … or domestic animal … and causes physical injury or death.”  A dog shall not be declared to be dangerous if its conduct “was justified because the dog was responding to pain or injury, or was protecting itself [or] its owner…” The Supreme Court stated "The condemnation of an individual dog in the context of a dangerous dog proceeding solely by virtue of its breed is without any legal basis. We have repeatedly held that “‘there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal.’”  The case is titled  The People of the State of New York v. Diana Shanks.   Glickman Turley LLP can help you protect your dog from breed discrimination. Call us for a consultation: 617-399-7770.

U-Visa for Victims of Crime

Attorneys at Glickman Turley LLP represent a variety of clients on U-visa petitions. Our clients who have been victims of domestic violence, sexual crimes, and racially motivated attacks have been granted protection in the US in the form of a temporary 4-year U-visa and later permanent resident status.

You may be eligible for a U-visa if you have been the victim of a crime in the US, have suffered substantial physical or emotional injuries, and helped or will help law enforcement with the investigation or prosecution of the crime. Please contact our attorneys if you believe that you may be eligible for a U-visa or if you would like to discuss representation on other immigration matters. Our attorneys also represent clients on matters relating to real estate purchase and sales, condominium associations, criminal defense, non-profit law, civil ligitation, business litigation, business law, probate matters including wills, powers of attorney, health care proxy, adoptions, and guardianships, animal law, gay lesbian bisexual transgender law.

Also, please see a recent USCIS memorandum regarding its approval of 10,000 U-visa petitions in the past year.

Good News: Animal Rescue Foster Care Expenses Tax Deductible

The tax court has just found in favor of a taxpayer who claimed that certain unreimbursed expenses she incurred fostering feral cats were charitable deduction. The tax payer volunteered with a 501(c)(3) charitable group, foster homes were part of the group's mission, the group could request her services at will, and it indirectly oversaw her work. Her deductions were subject to the substantiation requirements of charitable donations both above and below the $250 cash threshold. The court determined that the taxpayer's records substantially complied with the rules for substantiating cash donations of less than $250, even though the records showed the amounts of the expenses and to whom they were paid, rather than the name of the charitable organization and the amounts donated. These were the correct rules to use because donations of less than $250 were categorized either as cash or as property, and unreimbursed volunteer expenses more closely resembled cash donations according to the court. However, the court determined that the taxpayer could not deduct her expenses that exceeded $250 because she had not obtained contemporaneous acknowledgment from the charity.

The citation is Van Dusen, 136 TC ___, No. 25, Dec. 58,642.

For our clients, this means that if you foster animals for a charitable organization, your costs are charitable contributions if you are not reimbursed for those costs. Remember to keep good records about the cost and the purpose, and if any single cost is $250 or more, have the rescue group acknowledge the non-cash contribution in writing.

Pet Trusts in Massachusetts

Attorney Donna Turley was quoted in yesterday's Boston Globe editorial regarding the establishment of Pet Trusts in Massachusetts.  Attorney Turley was involved in the drafting of the legislation now before Governor Deval Patrick.