Pets and family law

Not to make light of the situation but I guess this post could be subtitled: “When your marriage goes to the dogs, and pets are involved, what is the solution?”

Couples, especially those who do not have children, adore their pets and often treat them like kids. It's no surprise then that the question of who gets the pets after separation is a growing issue for family lawyers.

In some parts of the USA – and elsewhere around the world – pets are looked upon as property and the Courts can set out who is going to get the pets. Some Courts even settle pet disputes by making arrangements that are similar to those used in parenting cases – the Judgment will set out what days of the week pets will spend with each party, as well as issues concerning medical care and stipulations for pet day care if both parties work.

In Australia, however, such options are not available. I have had numerous cases where pets were an issue and I have had to tell my clients that they have to work it out themselves. If you can’t reach agreement it usually means one person walks away from their beloved pet. Even if an agreement can be reached between the parties it is not possible to have that agreement formalised as the Courts will not make Orders for pets.

While some may think that Orders for pets would be a good idea there are a few reasons why the law doesn’t consider pets as property. Most of these reasons relate to the question: what is their value? Unlike a child that cannot be bought and sold, it is possible to purchase a pet – but overtime the value of that animal will become vastly different to its “replacement” cost – perhaps even bear no resemblance to it at all in the case of a mixed breed dog who has become a vital member of the family, for example.  Or when an animal becomes a show animal or a champion - they will then have a much higher value that does not necessarily bear any resemblance to their replacement value. If the Courts allowed litigation in relation to pets people could spend thousands of dollars fighting over the value of the pet – and the reason they want the animal in the first place is not actually a monetary one, but an emotional one.

Nonetheless, it will be interesting to see if the law develops to reflect the growing importance of pets in our lives.

Celebrity role model?

You may have seen over the last couple of days a snippet about Reese Witherspoon and the law: her husband was allegedly driving while intoxicated and Reese apparently pulled a little celebrity hissy fit.

While that is not the celebrity role model I'm referring to in the heading of this post it did remind me of a moment that did capture Reese setting a fine example.

A little while ago a photo popped up in the celebrity gossip columns of Reese Witherspoon, her new husband, and her ex-husband Ryan Phillippe standing together watching their son Deacon’s soccer game.

It takes pretty special parents to be able to do this – what many therapists call ‘Child-Focused Separation’.

These are parents who are consciously aware of the emotional and psychological needs of their children following separation and who are willing to transcend the personal drama of the breakdown of their own relationship to help ease the way for their kids after separation.

In the case of Reese and Ryan, apparently they have a shared parental responsibility arrangement (they both continue to jointly make decisions about the kids) with the kids living primarily with Reese but spending significant time with Ryan.

What the soccer photo showed though was Ryan and Reese choosing to take one of the many extra opportunities – such as sporting events, school programs, recitals, parties, Open School Nights etc – to come together as a family unit. And this soccer game isn’t the only time Reece and Ryan have done this – three months after their split there were seen together attending a school function with their young children.

This is exactly what parents in a child-focused separation do – they put their differences behind them when it comes to “family” time. They’re civil, respectful and totally focused on giving their children the best possible experience when the family spends time together. These caring parents do not confide their frustrations to their children and, most important of all, they limit venting their anger and distain about the former spouse to conversations with other adults.

The significance of spending time together with both Mum and Dad when kids are experiencing the drama of their parent’s separation can’t be overstated. It provides support, security and stability at a time when the children’s world may be falling apart.

By being together at their son’s soccer match Ryan and Reece (and Jim) are rising above any resentment and vindictiveness for the sake of their children – and in the process they’re setting an example that’s worth public mention.

Dividing digital assets

Technology and the internet permeate nearly every aspect of life today – not only are mobile phones, iPods, iPads, e-readers, digital cameras and computers vital to our everyday lives but so is the technology and data that are crucial to our use and enjoyment of these items. And while some of these items only take up a small amount of space – or even only virtual space – they can take 100s or 1000s of dollars to accumulate.

So, in the case of divorce or relationship breakdown, what happens to these assets and data?

Splitting up today means couples need to consider what to do with items beyond the house and the car or even the pots and pans. It extends to technology devices like phones, tablets, laptops, e-readers, Xbox, and gets even more complicated with intangible items like cloud data, iTunes and Flickr accounts.

The process is simpler if things have been kept separate – you each keep your physical assets such as your own phone, e-reader, camera and computer – as well as your iTunes account and file sharing system (photos, e-books, downloaded movies etc) – and then you can reset privacy settings, un-friend or de-follow the in-laws etc, and start to move on.

But, for couples who have merged all their technology, share social media accounts and maybe even store it all conveniently in one giant, familial cloud, then the situation is murkier. If you can’t agree on how these assets are to be divided between you (by allocating items in the account to another account, for example) then in a contentious separation, details on how to divide digital goods like a shared photo site or an extensive movie streaming library will increasingly be addressed in negotiated Financial Agreements and Consent Orders or will even have to be determined by a Judge.

Perhaps less common – although certainly an emerging issue – is how to settle virtual assets (non-physical objects purchased online for use in online communities and games) purchased during a marriage or relationship. In ‘Second Life’ and other online games, people spend real-world currency to buy goods and features like pets, coins, avatar clothing and weapons, and even virtual real estate for these and other online activities. In some games, players trade and sell these goods and can convert them back to real-world currency, often for a profit. As an extreme example, in the multiplayer Entropia Universe a player sold a virtual nightclub for over US$600,000 – prior to sale that player was making around US$200,000 annually from other players purchasing virtual goods and services.

As the prevalence of digital technology and virtual assets is only likely to continue the division of these items following the breakdown in a marriage or relationship is growing issue.

The role of a family law solicitor

One of the hardest things to do when splitting up is to think rationally. Separation can be the most difficult of times, when often all that appeared to be certain and safe suddenly becomes uncertain and potentially unsafe. Even the most sensible of people wonder whether they are making the right choices, in their financial life or about their kids.

A large part of a family lawyer's role is to help guide clients through this process, including assisting clients to make rational and smart decisions, for the benefit of themselves and their children. A good family lawyer does this by focussing on their duty to the client - but above all the duty to the proper administration of the law.

Some people want their family law solicitor to be aggressive, antagonistic, and forceful - to ‘fight’ for them, or as someone once said to me “be a bulldog”. But the family law system – the Family Law Act and the Family Law Courts – is not set up that way. Believe it or not the entire system is focussed on compromise, on reaching a resolution that reflects your financial reality or the circumstances of your family. And this means that both sides will compromise.

Other people treat their lawyer as a counsellor. Despite all my experience in family law I haven't been trained as a counsellor, the emotionally pressured nature of family law negotiations (especially at Court) is not a great environment for reflection or contemplation ... and we charge for our time.

And others want their family law solicitor to fix all of their financial problems. Family lawyers are not experts on all topics, for example, we are not financial planners - indeed, we are not allowed to give our clients financial advice – nor are we mortgage brokers or bankers.

But what a good family law solicitor will do is take an holistic approach to your matter:

• Listen to you
• Identify the problems that need a solution
• Provide advice about your legal options (including reaching amicable agreement and if necessary your Court options)
• Negotiate, and if necessary litigate, to reach a resolution of your parenting or property matters
• Refer you to an expert who can help with the non-legal issues and then work with that expert to reach an overall solution

The entire aim of this approach is to give you as much peace of mind as possible, which enables you to make informed choices, which in turn allows you to return your focus on your life, including being the best parent you can be for your children. This approach also means that my clients can save a lot of money, either in a better financial outcome in the property settlement and/or resolving the matter sooner, saving substantial legal costs. A good outcome for everyone.

Divorce: what are the kids thinking?

If you are contemplating separation – or if you are already in the middle of it – one of your concerns is probably about how the kids are going to cope and what their thoughts of it (and you) are.

Some kids will tell you – sometimes loud and clear (temper tantrums) while others become too quiet (withdrawn). But most kids find it quite difficult to actually say how they are really feeling.

This is because most kids don’t want to make the situation worse.

As “grown-ups” we have a funny way of assuming that we have to shield our kids from anything upsetting but the reality of it is that kids instinctively know that their little lives depend on us and they therefore decide to protect their parents by not saying anything that will upset you even more.

But in the safety of a chat to the school counsellor or a private therapist, children frequently reveal the same worries and for kids under 10 these are the top concerns:

·         “I just want the fighting to stop” – sometimes witnessing arguments helps kids to adjust to the necessity of separation (one of the circumstances of divorce which kids struggle with the most is where separation comes as a surprise) but constant fighting and bitterness is not something children can cope with – their essential sense of security is too challenged.

·         “I hate being in the middle” – we all know that putting our kids in the middle (“tell your mother/father to be on time cause we’re not waiting”) is a bad idea but sometimes it is more insidious. A disparaging remark about your ex – no matter how justified – is interpreted as a disparaging remark about the child ... after all half of them is that person.

·         “I feel like it’s all my fault” – little ears hear things they shouldn’t ... “everything was fine until we had kids”. But children do not understand that what is being said is a symptom of something much deeper – they take it to heart and interpret such a statement as being aimed at them or their behaviour and they believe they are to blame for the separation.

·         “Is Mum/Dad divorcing me too” – kids take everything personally – they are the centre of their own universe. Therefore something perfectly understandable to you such as “I can’t see you on Sunday because I have to work” will be interpreted by them as “Dad doesn’t want to see me on Sunday” – they don’t automatically understand that your reasoning.  

·         “I wish everything would go back to how it was before” – however difficult family life was before it is nonetheless what the kids knew – they knew how each parent operated and what to expect from each parent. And kids are creatures of habit – they don’t understand the need for the change.

Knowing the above can help parents to help their kids through divorce. You can chose where and when to have the inevitable disagreements with your ex. You can be mindful of not making negative remarks about their other parent. You can remember to explain your reasoning to your child – not assume that they understand why you can’t make it to their soccer game. You can remember to constantly reassure your child that there has been a change in living arrangements not in the family arrangement – that the two of you will always love them. Most of all you can provide ongoing reassurance, conversation, love and attention as they settle into a new normal – because kids are incredibly adaptive ... with help from the grown-ups.