§ 8.09 Dealing with Pets at Divorce

• Jurisdiction: United States
• Publication year: 2021

§ 8.09 Dealing with Pets at Divorce

[1]—The Traditional Rule: Pets Are Property

Pets traditionally have been treated at divorce as property. Therefore, in a marital property state if one spouse acquired a pet before marriage, that spouse should be awarded the pet upon divorce.⁵²⁹

A pet acquired during marriage with marital funds under this view could be awarded to either spouse at divorce. But the award would be a property award to one spouse or the other. A Florida court reversed an order by a trial court awarding the family dog to the husband while giving the wife "visitation" rights. The appellate court noted, "our courts are overwhelmed with the supervision of . . . matters relating to the protection of our children. We cannot undertake the same responsibility as to animals."⁵³⁰

In a Pennsylvania case the family dog was awarded to the wife at divorce. Shortly thereafter the husband filed a petition for "shared custody" of the dog, which the trial court denied. The appellate court reiterated the traditional rule that pets are to be treated like any other type of personal property in connection with divorce. The court noted that, just as a divorce court lacked the power to grant visitation regarding a table or lamp, it also did not have the power to make such an order regarding a pet.⁵³¹

A Delaware court has refused to enforce a divorcing couple's agreement to share access rights to the family dog.⁵³²

A New York divorce court has treated a dog as assignable property at divorce.⁵³³

In a Missouri case, the couple had received a dog as a gift during marriage. Gifts received by spouses during marriage are marital property in Missouri. The court awarded the dog to the wife.⁵³⁴

The Vermont Supreme Court has concluded that, when dealing with pets at divorce, courts should not evaluate "the best interest of the animal."⁵³⁵

[2]—The Alternate More Flexible Approach

Some courts have deviated to some extent from strict property principles when dealing with pets. For example, in an Iowa case, although the husband gave his wife a dog as a Christmas present, the court awarded the dog to the husband because the dog seemed to have a stronger bond with him.⁵³⁶

A Kansas court has upheld a separation agreement that awarded the family dog to the wife and gave the husband visitation rights.⁵³⁷

A Minnesota court upheld the award of two dogs to the wife based on evidence that the husband had mistreated the dogs.⁵³⁸

In a Maryland case, the court gave custody of the...