Who Gets the Dog?

We consider our pets a precious part of our family, especially nowadays as more and more people either put off having children or choose not to have them. Many of us feel our pet is our child. When our pets are victims of a divorce, laws regarding their best interest are rare. Depending on how the division of your property is decided, your beloved pet is just another item on the list to be split between the two parties: Car, washer, dryer, the dog, sectional, big screen TV, etc. It just does not make sense to me that a living being is lumped in with all these inanimate, material objects.

Remember a few weeks back we talked about what happens to a pet when we pass away? In summary, unless other plans are made, our pets are legally considered no more than “property” when we die and will be dealt with accordingly. Similar laws apply when choosing who gets pets in a divorce. In fact, according to Virginia law, just like any other personal property, pets are subject to division by the court in a divorce case under Section 20-107.3 of the Virginia Code.

Who is looking out for my pet’s best interest?

Because our pets are considered personal property, the courts do not even have to consider their well-being when settling a divorce. Sadly, that means that the pet could be awarded to the party that cares the least about their welfare. In a bitter dispute, a pet is sometimes used as a bargaining chip just to keep the other spouse from gaining custody. It is terrible to think that someone would withhold a pet from their spouse – not for love, but simply out of spite. Unfortunately, it is done, and these are the sweet pets that often end up in shelters, as the awarded owner does not really care to have them… they just wanted to win the fight.

State Laws with divorce and pets

There are two types of laws in which the courts decide how to divide assets in a divorce: 1) Community Property or 2) Equitable Property Distribution. In community property, the property is split equally between both parties. In equitable property distribution, the court will be divided “fairly,” but not always equally. Each state is governed by one of the two different types of laws.

Community Property is everything a couple has together. This includes money, debt, and property. Spouses own (and owe) everything 50/50, regardless of who makes the most money. The goal is to divide the property so that each party’s share is equal. Property, of which your pet is considered, becomes part of that division.

Obviously, your pet cannot be divided, but if you are fighting to keep your pet, the courts may ask you to buy out your spouse’s interest in the pet, or offer up something in exchange for the pet that is of equal value. For example, “You can keep the car and the TV if I can keep the cat.” Most of us would not trade our pets for anything in the world. If both parties feel the same way, this can cause quite a dilemma.

What if my Spouse and I cannot agree on who gets to keep the pet?

When an impasse occurs, the judge will likely consider a few factors. First, is the pet “separate” property or “marital” property. In other words, if you came to the marriage with your dog, your dog is considered separate property, belonging to you…so the dog stays with you. If your dog was purchased or adopted during the marriage, they become marital or community property, belonging to both of you.

If the dog belongs to both of you, then the judge may evaluate both of your roles in caring for the dog in order to make a decision regarding custody. For example, which one of you feeds the dog? Who takes it to the Veterinarian? Who makes sure the dog gets regular exercise? Who grooms the dog? Who spends the most time with the dog? Proving these answers is sometimes as messy as the divorce itself.

The Court’s responsibility to the pet in a divorce

It is feasible (and hopeful) that a judge will place the pet in the home where it would get better care. If there are children that have a connection to the pet, the judge is likely to place the pet with whoever has custody of the children. If there are several pets, the judge may split them up. Or the judge may consider the lifestyle of the parties in question. For example, if one spouse travels often for their job, the judge would probably award the pet(s) to the party that is home more.

Since the law considers our pet personal property, the courts are not equipped to settle disputes regarding pet custody after divorce. The judge is under no obligation to hear and decide the future of the pet when dividing assets in divorce. Fortunately, many judges who understand the emotional value of a pet will approach the situation with empathy.

Virginia is an Equitable Property Distribution state. In equitable property distribution, the courts will work to divide the marital property in a manner that is fair, but not always equal. It sounds funny because we think of the word equitable as being “equal.” Equal means “the same as,” but equitable actually means “fairly,” or reasonably. If both parties are unable to come to an agreement on distributing their property, a court will do that for them.

How will our property be split in Equitable Property Distribution?

So many factors come in to play when property is being distributed under equitable distribution laws: the income of both spouses (before and after divorce), their health, their ages, the contributions of each to the marriage, how much alimony is to be awarded, and whatever else the court sees fit. A value is affixed to each piece of property, and that includes the pet.

Equitable distribution is a fact-gathering process, and this logic is used regarding the family pet. The court may simply affix a value to the pet and consider it a financial asset to be considered in the overall property distribution. Or, hopefully, they weigh the facts to award custody. Examples of these facts may be:

• Can the spouse afford to care for the pet?
• Who does the pet prefer?
• Has either spouse been charged with animal abuse or neglect?
• Which spouse will be able to provide the best living arrangements for the pet after the divorce?
• Is the spouse physically and mentally able to care for the pet?
• Which of the two parties took care of the pet during the marriage?
…and so on.

What can my spouse and I do to protect our pet?

The divorcing parties are better off trying to reach a solution among themselves or consider a Property Settlement Agreement in lieu of the court’s decision. The agreement will be incorporated into and enforced by the court as part of the final order. The sad reality is that if you cannot agree on who gets the pet, the courts will place a fair market value on the pet and it will be ordered to be sold. Proceeds of the sale will be split between the two parties. Isn’t that horrible? How can you place a value on something so very dear to us?

It has been my experience that all of the dogs I have ever owned had a preference between my husband or myself, even though they loved us both and looked to each of us for certain things: i.e., Mom will feed me, but Dad takes me on walks. Or Mom sneaks me more treats, but dad likes to play ball with me. Dogs clearly choose their master. It would be so easy for a divorcing couple to civilly use that logic when deciding who gets the pet, but it remains a frequent disagreement. After all, both parties love their pet.

The Times, They are a-Changin’

More and more, legislatures and courts are beginning to recognize the disservice in treating an animal as mere property when their well-being is in question. In 2017, Alaska became the first state in the US to award joint custody of a pet. According to the new law, Alaskan courts have the authority to consider the best interest of the pet, as they would a child. Illinois passed similar legislation, and in 2018, California became the third state to pass legislation to empower CA to take “the care of the pet animal” into consideration in cases of marital dissolution or legal separation. Will Virginia and other states follow suit? It is very possible.

If the opportunity presents itself, let your legislators know that in matters of the law, you feel our pets should be treated as the loving family members we know and consider them to be.