Pets in a Divorce

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INTRODUCTION

In the state of Utah, as in many other states in the United States, pets are considered personal property. In divorce proceedings, the court is often tasked with dividing the property equitably—not necessarily equally—between the spouses.

However, in cases where a pet was owned by one spouse before the marriage and has since become a family pet, the question arises as to whether the pet should be treated as separate property or whether it should be subject to an equitable division as is done with marital property.

This blog examines the legal principles regarding the division of pets in a divorce, and specifically, whether a pre-marital pet that has become a family pet should be awarded to the spouse who owned the pet prior to marriage or if ownership of said pet should be equitably divided as marital property.

PETS AS PERSONAL PROPERTY

Under Utah law, pets are considered personal property, which means that they are treated in the same way as other personal property in divorce proceedings.

As personal property, the court will consider the value of the pet, the contributions of each spouse in acquiring and caring for the pet, and the needs of each spouse when determining how to divide the pet.

The court will also consider any prenuptial or postnuptial agreements that may be in place.

PETS AS SEPARATE PROPERTY

In cases where a pet was owned by one spouse before the marriage and has since become a family pet, the question arises as to whether the pet should be treated as separate property or as marital property.

In Utah, separate property is property that was owned by a spouse before the marriage or that was acquired during the marriage through inheritance or gift. In general, separate property is not subject to division in a divorce.

However, in cases where a pre-marital pet has become a family pet, the court may consider the pet to be marital property, especially if the pet was treated as a family pet and cared for by both spouses during the marriage.

The question then arises as to whether the court should award the pet to the spouse who owned the pet before the marriage or divide ownership of the pet equitably as marital property.

FACTORS CONSIDERED WHEN DIVIDING OWNERSHIP OF A PET

As mentioned above, when dividing property in a divorce, Utah courts follow an equitable distribution approach, which means the court attempts to divide assets and debts fairly but not necessarily equally.

Pets are generally considered personal property in Utah, so the court will consider various factors when deciding on pet ownership, which may include:

1. Ownership before marriage: If one spouse owned the pet before the marriage, the court may be more likely to award ownership to that spouse.
2. Financial contribution: The court may consider which spouse has primarily paid for the pet’s expenses, such as food, medical care, and supplies.
3. Caretaking responsibilities: The court might also look at which spouse has taken on the primary responsibility of caring for the pet, including feeding, walking, grooming, and arranging veterinary visits.
4. Living arrangements: The court may consider the living situation of each spouse after the divorce, including factors such as housing stability and the presence of other pets or children that could impact the pet’s well-being.
5. Emotional attachment: In some cases, the court might take into account the emotional bond between the pet and each spouse or their children, if applicable.
6. Spousal agreement: If the spouses can come to an agreement on pet ownership outside of court, the judge is likely to honor that agreement.

It is important to note that these factors are not exhaustive, and the court may consider any other relevant factors specific to the case.

ADDITIONAL CONSIDERATIONS

The division of pet ownership during a divorce can be a sensitive and emotionally charged issue, as pets are often considered members of the family.

Although pets are generally treated as personal property under Utah law, some courts and states are beginning to recognize the unique nature of pets and their importance to families.

Here are some additional points to consider regarding pet ownership in a divorce:

1. Best interest of the pet: Some courts may take a more modern approach and consider the “best interest” of the pet, similar to how they would approach the “best interest of the child” principle in child custody cases. This could involve evaluating factors such as each spouse’s ability to provide a stable home, financial support, and time for the pet, as well as the pet’s relationship with each spouse.
2. Pet custody arrangements: In some cases, spouses may be able to negotiate a shared custody arrangement for their pet. This can involve creating a schedule for time spent with the pet or establishing shared financial responsibilities. This type of arrangement should be made in the best interest of the pet and should take into consideration its routine, socialization, and overall well-being.
3. Mediation or negotiation: Instead of leaving the decision to the court, spouses can work together, either independently or through mediation, to negotiate pet ownership. This allows the couple to have more control over the outcome and create an agreement that works best for them and their pet.
4. Documentation: Providing documentation, such as proof of financial contributions, adoption or purchase records, and vet bills, can help support a spouse’s claim for pet ownership during a divorce. Similarly, maintaining a detailed record of each spouse’s caregiving responsibilities and time spent with the pet can be helpful.
5. Avoid using pets as leverage: It is important to keep the pet’s well-being in mind and not use them as a bargaining chip during the divorce process. Both spouses should strive to make decisions that are in the best interest of the pet, even if it means making difficult compromises.

RELEVANT CASE LAW

Akers v. Sellers

The case of Akers v. Sellers¹54 N.E.2d 779 (Ind.App. 1944). involves a dog given to the appellant, John Akers (hereinafter, “Mr. Akers”), who then gave the dog to the appellee, his wife Stella Sellers (hereinafter, “Ms. Sellers”). Both parties loved the dog, and the dog was affectionate to both.

Unfortunately, the marriage between the couple was not sustainable, and divorce proceedings were brought forth by Ms. Sellers. Because the dog was a gift, it was not part of the divorce and remained with Ms. Sellers and the house. Mr. Akers then brought an action in replevin against Ms. Sellers regarding the ownership and possession of the dog.

Mr. Akers claimed that the legal title of the dog and the dog’s best interests rested with him, and he unsuccessfully brought a suit in replevin in the lower court. The lower court determined that there was no reason why possession should not accompany ownership (as Mr. Akers had given the dog to Ms. Sellers).

On appeal, the Court held that there was insufficient evidence to overturn the lower court’s determination, and so the lower court’s decision to allow Ms. Sellers to retain the dog stood.

Desanctis v. Pritchard

In the case of Desanctis v. Pritchar,² 803 A.2d 230 (Pa.Super 2002) the parties incorporated an agreement that they claimed to be a settlement agreement, but it was more of a custody arrangement for their dog, Barney, which provided that the wife would keep the dog and the husband could exercise visitations with the dog. However, this agreement of the parties was never merged into the divorce decree.

The wife moved away, causing the husband to lose visitation with the dog due to the distance, and so the husband filed suit against the wife, hoping that the court would consider the agreement regarding the dog; however, the husband discovered that, from a legal standpoint, he was barking up the wrong tree, so to speak.

The court in Desanctis held that, despite the status owners bestow on their beloved pets, Pennsylvania law considers dogs to be personal property, and so any custody arrangement made by the parties regarding the dog was void because custody over a dog, under Pennsylvania law, was the same as having a visitation schedule for a table or lamp—i.e., a legal impossibility.

Sullivan v. Ringland

In the case of Sullivan v. Ringland,³117 N.H. 596 (1977) the plaintiff, Sullivan, purchased a dog named Gun in early 1974, apparently as a birthday present for her then-husband. Several months thereafter, Gun was registered in the names of the plaintiff and her husband.

The husband and wife separated and later divorced; the husband remained in the house with Gun and planned to take care of Gun until the plaintiff had relocated. However, these plans were soon changed, and the husband decided to retain possession of the dog indefinitely. The wife filed suit seeking replevin over the dog.

The court held that, at the time of the gifting of Gun, the gift was effective in transferring interest over Gun, and there was a sufficiency of the evidence supporting the findings. Therefore, replevin against the defendant would not be appropriate.

Hament v. Baker

The case of Hament v. Baker⁴196 Vt. 339, 97 A.3d 461, 2014 VT 39 (2014) entailed Belle, an eleven-year-old German wire-haired pointer who was greatly loved by the husband and wife involved in the case. The parties had no minor children, and they were able to reach an agreement on the division of their property and other financial issues.

The parties came to the final hearing for a ruling regarding which one of them would receive ownership over the dog in the divorce decree. Prior to the hearing, the parties’ respective counsels met with the parties to discuss the criteria that the court would apply in assigning who the dog should reside with.

The court stated that the primary factor for its decision would be which spouse was most active in caring for the dog during the marriage. At the conclusion of the hearing, the dog was awarded to the husband.

The court found that, although either party would give the dog a good and happy life, the husband had the slight edge because the dog was accustomed to the routine of going to the clinic every day. Furthermore, the husband treated the “dog like a dog,” whereas the wife tended to treat the “dog like a child.” The court concluded that the dog would do better with the husband’s balanced attitude towards the dog.

In conclusion, the court also discussed the fact that it was not uncommon for couples to schedule visitation time for their animals, so the husband may decide to allow the wife to spend more time with the dog in the future once the dust settles.

However, the court disagreed with the wife’s contention that the court had the authority to impose an enforceable visitation order for the dog.

Closing Notes

The cases of Akers v. Sellers, Desanctis v. Pritchard, Sullivan v. Ringland, and Hament v. Baker demonstrate that, in most jurisdictions, pets are considered personal property in divorce proceedings.

Although dogs and other pets are treated like property when it comes to divorcing couples, courts look to things such as who has the strongest bond with the animal, who pays for their care, and if there are children as part of the divorce (because courts tend to not want to separate children from their pets).

While some states, like California and Alaska, have begun to treat animals differently and accept custody agreements for pets as they would for children, the majority of states continue to view pets as property. As such, legal outcomes regarding pets in divorce cases often come down to the specific circumstances of each case and the jurisdiction in which it is heard.

Again, when it comes to pets in divorce cases, the traditional approach taken by the majority of jurisdictions is to treat animals as personal property; however, this view has been increasingly criticized as it does not take into account the emotional attachment and unique bond between humans and their pets. Consequently, some states have started to consider pets’ best interests rather than simply treating them as inanimate objects.

In states that treat pets as personal property, judges often use factors such as who purchased the pet, who has been the primary caretaker, and who has paid for the pet’s expenses to determine ownership. Additionally, judges may consider any existing arrangements or agreements between the parties and the role of the pet in the family dynamics, especially if there are children involved.

In states that have started to treat pets more like family members and less like property, courts may consider the best interests of the pet, similar to child custody cases. Factors such as the pet’s welfare, each party’s ability to care for the pet, and the stability of the living environment, are taken into account.

Courts may also consider joint custody arrangements and visitation schedules for pets in these jurisdictions.

As public opinion and attitudes towards pets evolve, there is a possibility that more states will adopt laws recognizing the unique status of pets in divorce cases. This shift could lead to an increased focus on the best interests of the animal and a more nuanced approach to determining pet custody.

CONCLUSION

In conclusion, while pets are considered personal property under Utah law, the question of whether a pre-marital pet that has become a family pet should be treated as separate property or marital property is complex and depends on a variety of factors.

When dividing ownership of a pet in a divorce, the court will consider several factors, including the value of the pet, the contributions of each spouse to the care and maintenance of the pet, and the needs of each spouse. The court may also consider the “best interests” of the pet. The fact that the pet has become a family pet is a relevant factor that the court may consider in determining how to divide the pet.

Ultimately, the court will make a determination based on the unique circumstances of each case.

It is important for individuals who own pets before getting married to be aware of the potential issues that can arise in the event of a divorce. If the pet is important to the individual, they may want to consider entering into a prenuptial or postnuptial agreement that addresses the issue of pet ownership and division in the event of a divorce.

In any event, it is clear that pets are often more than just property to their owners; they are beloved family members that provide companionship, comfort, and joy. As such, it is important for the court to carefully consider all of the relevant factors when determining how to divide custody of a pet in a divorce in order to ensure that the best interests of all parties involved, including the pet, are taken into account.