Last updated on March 20th, 2019
We treat our dogs and cats like part of the family. However, the law considers pets to be personal property. When a couple decides to separate or divorce, the court considers their pet as one of the couple’s assets.
During a divorce, the court will award the “property” to one spouse or the other. If you want to help ensure you keep your pet through a relationship, there are several steps you can take.
Step 1: Plan Ahead
Adopting a pet can seem like having a child together. For pet owners, an animal is a living, breathing being that depends on you for love and care. However, under Virginia law a pet is considered property, and does not hold the same rights as a human child.
For this reason, it’s important to talk with your partner about several key issues early in your relationship. Deciding who keeps the pet before a separation occurs can make the entire process much easier. Some people even decide to draw up a “pet prenup” to plan for the care of their pet just in case the relationship doesn’t work out.
There are a few things to consider when making a plan for your pet’s care in case of divorce or separation:
- Who is home more often or has more free time to take care of a pet?
- Is “sharing custody” an option? Or can one person have the dog most of the time with the other person being called upon to pet-sit when needed?
- Is the pet stable and flexible enough to move around to different houses, or should it stay in one place?
The more details you can agree upon in this stage, the better off you and your pet will be.
Step 2: Figure Out What’s Best For Your Pet
Although the courts consider a pet to be personal property, they do look at other factors when it comes to their placement. If you can show that you have your pet’s best interests at heart and want to provide the best home for him, the court will be more likely to award the pet to you.
- Have a plan for your pet’s care when you’re at work or – even better – try to work from home. If the court perceives that your pet will be alone for long periods of time while in your care, they’re less likely to let you keep him.
- Collect records of the pet’s vet care, especially if you were the one who usually handled vet visits. Go over the pet’s daily care schedule. If you can show that you were the one who provided most of the care for the pet (feeding, exercising, vet visits), you’re more likely to convince the judge that he’s better off with you.
- Show that you want the best for your pet. If the court gets the impression that you want to keep the pet only because you want to “win,” you probably won’t.
Step 3: Consider Who Had The Pet First
In Virginia, when dividing property in a divorce, the judge will have to take classify all the property owned by the divorcing parties. If the property was owned by a spouse before the marriage, it is likely separate property and will continue to belong to the original owner.
In Virginia, the general rule is that anything purchased, acquired, or earned during the marriage as a result of the efforts of either spouse will be classified as marital property. All marital property is subject to Equitable Distribution by the court.
It is important to note that “Equitable” does not mean “Equal”, it means “fair”. Thus, things earned during the marriage will be divided in a way a judge believes to be fair.
Sometimes an item belonging to only one spouse before the marriage can become mixed property.
For example, consider a marriage where the wife owns a car before she is married. While they are together, the combined marital funds go towards paying for gas, repairs, waxing, and the general upkeep of the car. If these amounts are not directly recorded over the course of the car’s lifetime, then this amount becomes impossible to pin down, and the car itself becomes mixed property due to the inability to distinguish who owns what percent of it.
Returning to a living example, if one spouse brought the pet into the relationship, the court will see that pet as belonging to the original owner. However, if during the marriage the care, feeding, and veterinary bills were provided through marital property, it might be impossible to untangle to expenses and effort put into the pet. The pet might then become mixed property and subject to division during the divorce.
If you weren’t the original owner of the pet, but still feel like it would be best for the pet to live with you, it’s still possible to persuade the court to let you keep him. You’ll just have to show the pet is “mixed” property and make a good case for why the pet is better off with you. For example, you can argue that you:
- Financially contributed to the pet’s needs and care.
- Are home more often and can take care of the pet.
- Povide most of the pet’s care (feeding, grooming, vet visits).
- Have bonded more with the pet.
Considering the original owner is important, but in many cases it is not the deciding factor.
Step 4: Don’t Expect the Courts to Negotiate “Custody”
Unless you’ve thought ahead and have a “pet prenup” to map out a custody agreement, don’t expect the courts to enforce visitation rights for your pet. The purpose of a divorce is to finalize the relationship and permanently divide property.
An Interesting Case – Roddy the dog
To see how badly this can play out, consider this real precedent from Florida.
In the case Bennett v. Bennett back in the 90’s, a Florida court made the mistake of negotiating a custody agreement for a dog named Roddy. One of the partners wasn’t keeping up their visitation schedule correctly and the case was brought back to a higher court to enforce the visitation rights. This higher court came to the conclusion that devoting so many public resources to dog visitation was pointless and unsustainable and overturned the lower court’s ruling of allowing visitation. To quote from the ruling:
The best way to share a pet after a divorce is through a separate agreement. Business contracts are generally enforceable in the courts as issue separate from a divorce.
For this agreement to be enforceable it will have to meet the requirements of a valid contract. Simply agreeing to share your pet with a former spouse is not by itself an enforceable contract. To be valid, each side will have to agree to give up something of value. This contract must be written down and signed by both parties.
Another thing to remember is that litigation to enforce a contract can be very costly. You will have to decide whether constant actions to enforce a contract are in the best interest of your emotional and financial well-being.
A “gentleman’s agreement” to allow pet visitation might be a good alternative if your divorce was amicable. However, such an agreement will generally not be enforceable if things sour.
Step 5: Ask For Help
As you can see from the previous example, separations that include a pet can go south quickly, so it’s always critical to get the assistance of others more experienced in the process.
Some pet owners will call upon the Animal Legal Defense Fund to get involved in a divorce case. However, this only applies in circumstances where the pet might not be properly cared for. In these cases, the ALDF will submit a “friend of the court” brief on behalf of the pet.
Sadly, Virginia law sees pets as property. Sometimes a judge will consider what conditions are best for the pet, but there’s no guarantee this will go your way.
For this reason, you should hire an experienced family law attorney to help with the process. An attorney can walk you through the steps of the separation process and make sure your pet is treated like a part of the family and not simply an asset to be won.