When two people divorce, marital assets acquired during the marriage must be divided through a process called equitable distribution. Common assets include bank accounts, real property and art work. And as far as children are concerned, parents must enter into what’s called a parenting plan, which delineates all issues relating to the children including parental responsibility and a timesharing schedule outlining when each parent spends time with the kids. But what about the pets?
Personally, my animals are like children. I treat them as such to an extent. There are limitations! (but I do introduce them as my kids!). In fact, my father sometimes jokes and says he loves his dog (Bruce) more than he loves some family members. It’s actually true! So who gets the pets during a divorce? Is there such thing as shared custody of animals? What happens to our fur babies?
While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property. Only one case has addressed this issue as to whether a visitation schedule could be authorized by the Court.
In Bennet v. Bennet, a husband and wife were divorcing, and were able to stipulate to all issues except who would keep their dog, Roddy. The trial court awarded the husband full custody of Roddy, and the wife would get him every other weekend and every other Christmas.
Husband appealed arguing that Roddy was personal property subject to equitable distribution, and therefore, the wife could not claim custody. Husband then refuses to give Roddy to the Wife, Roddy violating the court’s order. Wife then files motion requesting full custody due to husband withholding visitation. On appeal, the First District Court Appeals found that they have too many cases dealing with minor children with timesharing issues and that it could not undertake the same responsibility as to animals. Therefore, Roddy would be subject to equitable distribution.
Personal Property subject to Equitable Distribution:
Equitable distribution is a process used by the courts to determine the economic value of the marital estate and then divides that estate between the parties in what should be an equal or fair scheme of distribution. This process is governed by Florida Statute §61.075.
Pets are considered personal property that may be bought, sold, or given away for no economic value at all. Therefore, pets considered to be marital property will be subject to equitable distribution as part of the marital estate. Marital pets are assigned an economic value based on the animal’s fair market value, which considers factors such as the pet’s breed, health and age.
Alaska, Illinois, and California are the only states that empower trial courts to consider the well being of the parties’ pets during a divorce.
For example, in a 2000 California case, divorcing spouses spent two years in litigation, fighting for their pointer/greyhound mix Gigi. This litigation, which wound up costing almost $150,000, included testimony from an animal behaviorist and a video presentation, a “Day in the Life of Gigi“. The video showed Gigi sleeping under the wife’s chair and cuddling with her. The wife was eventually awarded custody.
In a 2013 Tennessee case, the court upheld an award of ownership of the parties’ dogs in a divorce in which the trial court considered the dog’s needs and the parties’ ability to care for them. See Baggett v Baggett, 422 S.W.3d 537, 549-50 (Tenn. Ct. App. 2013).
In a 2012 Michigan case, the court determined it was proper to award Finn the dog to the plaintiff to keep all of the parties’ animals together. These cases recognize that when “two spouses are battling over a dog they once possessed and raised together, a strict property analysis is neither desirable nor appropriate.” See Aho v. Aho, 2012 WL 5235982, at *5 (Mich. Ct. App. 2012).
In Connecticut, a trial court awarded the parties “joint legal custody of the Labrador retrievers, but the Labrador retrievers’ principal place of residence” was awarded to just one spouse post-divorce.
In a 2010 Alabama case, the trial court relied upon an Alabama animal protection statute in awarding the family dog to one of the spouses based on the dogs “best interests.” See Placey v. Placey, 51 So. 3d 374 (Ala. Civ. 2010).
In a 1996 Arkansas case, the trial court awarded joint custody of the parties’ dog to the wife as primary custodian, subject to visitation rights by the husband. See Dickson v. Dickson, 1996 WL 89370 (Ark. App. 1996).
In a Texas case going as early as 1981, a trial court designated the wife as “managing conservator” of the marital dog, Bonnie Lou, as part of the property division during the spouses’ divorce. See Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App. 1981). On appeal, the husband agreed to the wife having custody of Bonnie Lou, if he could have reasonable visitation. Husband did not complain of lack of visitation; only that he was not appointed managing conservator. The court overruled this issue “with the hope that both [parties] will continue to enjoy the companionship of Bonnie Lou for years to come within the guidelines set by the trial court.” The appellate court further determined that “[d]ogs involved in divorce cases are luckier than children in divorce cases — they do not have to be treated as humans.” The court added that “[w]e are sure there is enough love in that little canine heart to ‘go around.’ Love is not a commodity that can be bought and sold or decreed. It should be shared and not argued about.” Recognizing the personal property nature of pets, the court permitted the trial court’s award of visitation with the dog to the husband within the guidelines set by the trial court.
Although there are many states that have recognized pets to be more than just property, Florida still has a long way to go. Hopefully things change soon as more and more people and States understand that pets are not just an object…they are living animals that love their owners unconditionally; and a love like this lasts forever.
If you have questions about what can happen to your pet(s) during a divorce, it’s best to ask a qualified family law attorney. Schedule a consultation with one of our attorneys today to review the issues of your position, the legal options you may have, and certain rights that pertain to your unique situation.
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