Why You Should Have A Prenuptial Agreement – Allocating Special ‘Property’

While Washington law defines community property as ‘property…acquired after marriage or after registration domestic partnership by either domestic partner or either husband or wife or both’ it does not address more nuanced issues like how to treat dogs, cats, exotic pets, embryos, etc. acquired during the marriage. It may be community property, but how should it be treated in a divorce?

The law on these issues varies by state and it changes periodically. Pets are often treated as property, not people. So, if you and your spouse get a dog and 5 years later get divorced, that dog is personal property subject to division (i.e. awarded to one spouse). It is becoming more common in prenuptial agreements to carve out custody arrangements for pets. It is typically only by agreement that pet custody is shared as the Court views them as property, so will not order shared custody barring some extreme circumstance.

Embryos are also treated as property subject to division. Usually, the Court relies on contractual agreements with the fertility clinic to determine how they are treated in a divorce. When there is no clear language or it defers to court intervention upon a dispute, the Court has leaned toward protecting a party’s right not to be a parent, often resulting in orders to destroy unused embryos. That can certainly be an undesirable result for the other party.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.