My husband and I don’t have kids, but we do have a special cat. I am keeping our house so it makes sense for Louie to stay with me, but we have agreed two weekends a month Louie will stay with my husband once we are divorced. Whenever I go on vacation, Louie will stay with him.
We want to put this arrangement in our agreement, but the mediator says we can’t. I don’t understand why. People share custody of their kids all the time. We weren’t able to have kids and Louie has been like our child. Why won’t he let us put the provision in our agreement?
Animal lovers do not like this answer, but animals are considered property in the eyes of the law. Just because you and your husband consider Louie to be your “child” does not make it so. Property division in a divorce agreement survives as an independent contract, meaning you cannot go back and change it later. Child-related provisions merge into the divorce judgment and remain modifiable whenever there is a change in circumstances.
Most mediators draft agreements in a way to avoid people running into problems at the time of the divorce hearing. The process of going in to court alone can be simple so long as you have a straightforward agreement. If you have unusual clauses in the agreement, the judge may not approve it — especially if you don’t have lawyers present to assure the judge that you actually meant the unusual provision to be there and you understand all of the ramifications.
If sharing your cat is a deal-breaker for you and your husband, you can approach it in one of two ways. First, you can insist the mediator put the cat clause in the agreement even if he doesn’t like it. Tell him you understand that it is not an enforceable provision, but it means a lot to the two of you and you will each retain counsel to attend the hearing to get the agreement approved by a judge. Then, you should each follow through and hire an attorney to attend the hearing with you so when questioned by the judge, they can assure the judge that the provision has been explained and the provision is meant to memorialize your respective intent with regard to the cat.
Alternatively, you can sign a separate contract outside of your divorce agreement. If the mediator will not draft the separate contract, find a general practice attorney who can prepare a basic contract. It would dictate the terms of sharing the cat and should include such things as who pays what cat-related expenses (i.e. vet bills, food, etc.). Two consenting adults have the right to contract with each other over anything that is not illegal — certainly joint ownership rights to a cat qualifies.