One thing you can say about people in Wake County is that they love their dogs. In fact, in an equitable distribution or divorce action, “dividing the dog” is something that comes up more often than most people realize. There is an old joke about a man who is sitting in a bar telling his troubles to a friend. “My wife left me and she took everything we had— the furniture, the bank accounts, the dog.” He wipes a tear from his eye and shakes his head, “Damn, I’m really going to miss that dog.” Well, folks, that doesn’t have to happen. With a pre-nuptial or post nuptial agreement you can be sure that ole Blue remains your best buddy regardless of how much you had to spend on the mutt after marriage and regardless of the fact that the beast probably prefers your spouse to you.
A Pre-nuptial agreement is an agreement made between two people prior to and in contemplation of marriage which states how certain things are going to be treated after the marriage takes place. It can include what will happen to the dog if you ever separate; but it can also include a lot more, like how you are going to handle money, whether you can give away your pre-marital property upon death, that the family business is going to remain a family business and your spouse claims no interest in it. In short, a pre-nuptial agreement can do anything that is not against the law or against public policy except, that it cannot pre-determine child custody or child support. Why can’t you do that? Because children are not property; they are human beings and the court is required to give custody to the parent with whom it is in the best interest of the children that the children reside. The dog, however human it acts, and however close you feel to it, is not human and can, therefore, have it’s custody decided by a pre-nuptial agreement.
“Ok”, you say, “but ole Blue came along after marriage. In fact, my honey bought it as a gift for me for our first anniversary.” While that may have been a very sweet gift, in North Carolina, gifts from a spouse are still considered to be marital property. (This outcome is not true in some other jurisdictions which consider any gift to be the separate property of the person who received it.) But, luckily for you, in North Carolina you can enter into an agreement with your spouse before, during, or after marriage to provide for the distribution of marital property. You do have to be sure that your agreement is made in accord with the requirements of NCGS §52-10 and §52-20.1, but that is a fairly easy thing to do.
If that special someone seems to have too much affection for your dog, and you wonder if the marriage may be more to get the dog than to get you, check out our article on pre-nuptial or pre-marital agreements on our web site. Or, if you want to give your spouse the gift of a dog, or any other token of your affection (except one of the children), and you really want to be sure that your spouse knows you mean it to be his or her property forever, include a lovely short little note, “Honey, I love you and want you to know this gift will be yours forever. Just so you know I really mean it, we can sign the enclosed agreement before a notary: “If we ever separate, we agree that (spouse’s name) gets the dog, “Blue”, as (spouse’s name) separate property and outside of any equitable distribution action.” And in that home you can expect there will be more wagging and less barking.