[CA] Does my marital separation agreement protect my right to the custody of our dog?
37
16
So in this case, the issue is that if you two said the property was divided, and since dogs are considered property at common law, the law says you two would divide it (CA Civ Code § 655). The fact that your husband has been abusive itself doesn't automatically revert rights over to you.
You mentioned there is a bill in California about how custody of animals is provided (CA Fam Code § 2605(a)). You're correct, but all this means is that the state has given judges authority to consider the care and interests of pets in this case. You guys can agree to this, but the thing is that the MSA is an agreement. This means that if he doesn't agree, then you won't be able to include this and you will need to argue in court why you deserve custody here.
Upvote if this is a clear answer
Downvote if this is not a clear answer
Create DocumentFull Conversation
I need a CA family lawyer to look at my marital separation agreement. Then I have a question to ask regarding my marital separation agreement.
Hello! Legal Eagle here, and I am an attorney specializing in your area of law. I am more than happy to help you with your situation! Was there a specific question you had about the MSA?
Super! Are you a CA family lawyer?
Howdy there! Yes, that is correct. I am.
On MSA, we divided all property at the time of writing the MSA, including the dog went with me — the dog is not called out in MSA, but we said all property was divided — so I just wanted to see in filing for divorce now with MSA do I need to call out the dog separately — and if so, this seems to nullify or weaken the MSA to me?
Ok thank you so much for including that! Do you two have any idea on how you want the dog to be split at all? Dogs are property so it would be included in this MSA, but the practical realities can look different.
He was abusive to dog in marriage, so I don’t want to do any kind of shared custody. He would over discipline the dog until the dog was crying — and I would stop it. I have no proof except for eye witnesses of parents. My husband is a narcissist, so it’s a very tricky deal ending this marriage.
My husband is threatening to get custody now or shared joint custody. I have had the dog for the entire 2 year separation.
And he has not cared about the dog until now.
Because of a bill in CA, there are now custody of animals provided.
I'm so sorry about that!
So in this case, the issue is that if you two said the property was divided, and since dogs are considered property at common law, the law says you two would divide it (CA Civ Code § 655). The fact that your husband has been abusive itself doesn't automatically revert rights over to you.
You mentioned there is a bill in California about how custody of animals is provided (CA Fam Code § 2605(a)). You're correct, but all this means is that the state has given judges authority to consider the care and interests of pets in this case. You guys can agree to this, but the thing is that the MSA is an agreement. This means that if he doesn't agree, then you won't be able to include this and you will need to argue in court why you deserve custody here.
I know it’s a lot, but does that help make sense of things a bit more? I want to make sure I didn’t leave anything out.
I can’t rewrite MSA — this was done 2 years ago and he would never resign something like this.
You really don’t seem to understand.
Oh ok thanks for clarifying! If I understand correctly, the divorce has already been finalized?
No, the divorce is just beginning. He wouldn’t work with me on signing a new MSA.
When I said narcissist, I meant it.
I am only wanting to protect my dog from further abuse.
So that is what I am trying to see what options I have.
So in your case, I would:
- I would make sure that this MSA is rewritten;
- Include how you guys want custody of your poor dog!
Also, I really appreciate you using AskaLawyer — it means a lot to be able to help. Let’s make this a smooth session for you, and you can add me as a favorite after we're done.
I don’t know what you mean — he already signed and notarized the MSA — so he did agree to that. And I can include that in my filing.
I just wanted to know that as a lawyer does the MSA that talks about the division of property — that we had already agreed to that 2 years ago — would that stand in court or not?
In regards to protecting the dog.
Got it! I see the confusion. One moment...
- Yes, the MSA still stands.
- Dogs are considered property even if they aren't specifically mentioned in the MSA;
- Courts have the authority to determine custody, but since your MSA has already determined your dog will be "shared," any changes you make have to come through a separate, future motion to change custody of the dog.
I know it’s a lot, but does that help make sense of things a bit more? I want to make sure I didn’t leave anything out.
No — point 3 is wrong — The MSA does not say the dog will be shared.
It would help if we could talk.
No problem. You can request a call any time.
The MSA says that all property has already been separated. It doesn’t call out the dog specifically but it says that all property has already been separated.
I don’t know where you got the idea that the MSA said the dog would be shared — it does not say this.
Ok thanks! So is the dog in your possession I presume?
Yes.
Ok thanks! I haven't seen the MSA so I'm flying a bit blind — thanks for your patience.
I'm having some reception issues — I need just a few moments.
Here is a summary of our phone call:
What we covered:
- You were concerned about whether your marital separation agreement (MSA) adequately covered the custody of your dog.
- It was clarified that since the MSA states all property has been divided, it includes the dog as personal property.
- It was suggested not to specifically mention the dog in your petition or summons to maintain the strength of the MSA.
- Concerns about your ex-partner claiming duress when signing the MSA were discussed.
- It was explained that proving duress requires substantial evidence, which seems unlikely in your case.
Next Steps:
- It was recommended to proceed without specifically mentioning the dog in legal documents, relying on the MSA's general terms.
- You should feel confident that the MSA protects your rights to the dog and other agreed-upon property.
I’m here if you need anything else.
