Who gets the family dog upon divorce? (dogs are chairs)

Couples are increasingly treating dogs like their children.  But what happens when couples divorce?  Who gets to keep the family dog? 

A recent case in New York illustrates how hotly contested pet custody can be.  Many times one spouse cares more about the dog than who gets to keep the house.  Given the enormous sentimental attachment people have with their pets, many times the uninterested party uses the pet as undue leverage to increase their stake in community property. 

Best interests?

Some states have turned to “the best interests of the pet” which applies something like the best interests of the child—to pets.  New York is one of those crazy jurisdictions.  California cases have explicitly rejected this view.  In an illustrative unpublished decision, the California Court of Appeals, Second District, rejected the best interests rule, stating, “Wife cites no persuasive authority, and we have found none, to support the proposition that the best interests of Emmit [the beagle] must be considered by the family court”. In re Marriage of Isbell, Willoughby (2005) 2005 WL 1744468 at 1. 

Dogs are chairs (chattel)

Courts look to property law principles to determine ownership of pets.  New Jersey Superior Court Judge John Tomasello recently stated, “Dogs are chairs; they're furniture; they're automobiles, they're pensions. They're not kids.”   Eric Kotloff, All Dogs Go to Heaven . . . or Divorce Court: New Jersey Un"Leashes" A Subjective Value Consideration to Resolve Pet Custody Litigation in Houseman v. Dare, 55 Vill. L. Rev. 447 (2010).  How do courts determine who the pet belongs to?

Separate property

When a pet was purchased before the marriage, determining custody post-dissolution is rather easy.  The pet is considered that spouses separate property and the other spouse has no right to the pet.  How do you prove dog ownership?  Courts look to see whom “bought and paid for the dog, paid license taxes for keeping it, and procured a collar for it with initials engraved on it.” O'Rourke v. Finch (1908) 9 Cal. App. 324. 

The tricky part is that one spouse can transmute their separate property into community property by a signed writing.  So, if the spouse who bought the pet before marriage registers the pet under both spouses names, the other spouse can argue that the registration was a written transmutation of separate property into community property.  There is not yet a case on point.

Community property

If the pet was purchased during the marriage and is community property the parties will be urged to come to a settlement agreement regarding the pet.  Some states allow for courts to create a “parenting plan” for the pet, to be enforced by the court, similar to a child custody plan.  California does not provide for such a scheme.  If the pet is community property, usually the parties come to a settlement agreement assigning ownership to one of the parties.  If the parties cannot agree on who gets to keep the family beagle, “the court may submit the matter  to arbitration any time it believes the parties are unable to agree upon division of the property.”  California Family Code § 2554 (b).  So, if the judge thinks you can’t come to a consensus regarding the beagle, he will send it to arbitration.  An arbitrator will most likely dispose of the family beagle to the party with the greatest sentimental attachment.

Pet prenup?

If pet ownership is really important to one or both of the spouses, they may want to enter into a pre or post-nuptial agreement detailing who gets pet custody and how.  Courts will generally enforce contractual agreements and such a pre or post-nuptial agreement can even detail a pet parenting plan that California courts are unwilling to come up with on their own.  If one spouse is especially attached to a family pet, making such an agreement may prevent them from giving up large amounts of community property just to get the family pet.