Should family pets receive special consideration in divorce?

• Author: Arcaro, Timothy L.
• Position: Animal Law

For most of us, pet adoption comes with a lifelong commitment to care for our pet for the remainder of its life. Pet owners connect with their pets in psychological, spiritual, and emotional ways that reflect a profound bond of loyalty and responsibility. (1) Many pet owners consider their pets to be family members and feel a sense of obligation to their pet's well-being in ways comparable to that of parents to their children. (2) However, pets are not children. Instead, under the law, they are personal property that may be bought, sold, or given away for no economic value at all. Regardless of how these animals come into our lives, they find a direct path to our couches and our hearts, and they stay there even after our human relationships may disintegrate. That's where the problem begins for pet owners who are ending their marriage. How should courts treat the family pet in divorce? Are they just personal property, or are they personal property and something more? In this article, we explore the various approaches courts have taken to the treatment of pets in divorce disputes.

Equitable Distribution Generally

Florida law classifies pets as personal property (3) and, as such, they are presumptively subject to equitable distribution in divorce. (4) As set forth in F.S. Ch. 61, equitable distribution is the legal process of identifying, valuing, and distributing marital assets and liabilities acquired during the parties' marriage. (5) Marital property generally includes all property acquired through marital efforts during the marriage, including interspousal gifts, such as pets. (6) Equitable distribution is frequently referred to as a "math problem" in which the court determines 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. (7) Through this winding-down process, each party receives their respective property and is otherwise returned to the status of being single. (8) Unlike child custody decrees, courts do not retain post-divorce jurisdiction beyond enforcement of equitable distribution orders; the process is designed to provide finality. (9) The statutory provisions of Ch. 61 do not specifically address pets as property in divorce and provide no direct guidance on how trial courts should resolve these disputes. This leaves important questions relating to pet valuation and distribution unanswered in Florida, not to mention the additional stress these legal ambiguities create for divorcing parties concerned about the well-being of their pets post-divorce.

U.S. courts have been inconsistent in their treatment of pets in divorce, but three identifiable patterns appear to have emerged in equitable distribution practices: the personal property approach; the personal property plus approach; and a best-interest analysis. These approaches exist on a spectrum of personal property rights in which pets receive varying degrees of legal protections in the context of equitable distribution. At one end of the spectrum, pets are homogenous like other home furnishings. (10) They are personal property no different from a lamp or table and, thus, not entitled to any specific consideration beyond their economic value. At the opposite end of the spectrum, pets receive specific consideration in regard to their best interests, which may include court-sanctioned visitation, contact, and access post-divorce. (11) The middle ground recognizes pets as personal property but also takes into consideration that pets are unique living creatures whose emotional attachments with their owners run in both directions, and that these emotional connections between owners and their pets have given rise to special concerns for their well-being and humane treatment. (12) Each approach is discussed below.

Personal Property

At the traditional end of the spectrum, the majority of jurisdictions embrace a "personal property" analysis in which the family pet receives no specialized treatment or consideration. (13) While "personal property" is not used here as a pejorative term, it does limit the court's legal analysis in divorce. (14) Marital pets are assigned an economic value based on the animal's fair market value, which may include factors such as the animal's pedigree, value of its littermates, or even its replacement value. (15) When there is limited or no economic value at stake, the pet's fate may simply be left to the spouse in possession of the animal when the parties separate. (16) The fair market value approach removes the complex analysis of factors, such as love, devotion, and best interests in favor of a relatively simplistic approach to economic valuation. The grand irony is that "some pets may have no...