Update on Who Gets the Dog in the Divorce
Last year, I wrote about who gets the family pet in divorces in California. Apparently, the topic was also important to lawmakers in Illinois. They passed a bill that would allow the courts in Illinois to make determinations of who gets the family pet based on the well-being of the animal. Below is the language from the two laws that took effect January 1, 2018 in Illinois.
Public Act 100-422
“Companion animals. Either party may petition or move for temporary allocation of sole or joint possession of an responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration, the well-being of the companion animal. “
“If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.”
According to the 2017-2018 APPA National Pet Owners Survey, 68% of US households own a pet, which is approximately 84 million homes. It is increasingly becoming obvious that state legislatures must address this issue. Sadly, California has yet to change its laws. As such, the below analysis from last year’s article is still applicable.
Who Gets the Dog in the Divorce?
When it comes to divorces in California, what can a pet parent expect? The sad truth is that in California as with many other jurisdictions, dogs are considered to be personal property. This is not meant to be cruel. It comes from the old common law definition of chattel. The Merriam-Webster dictionary defines chattel as an item of tangible movable or immovable property except real estate. While I realize that my Toby is a part of the family, the law does not.
Accordingly, in order to decide who gets the dog, the court will have to make a determination of whether the dog is the community property of both parties or the separate property of one. Family Code §760 defines community property as all property acquired by a married person during marriage while domiciled in California. Family Code §770 defines separate property as all property owned by a party before marriage, or acquired during marriage by gift or inheritance. In addition, if the funds used to purchase the property during marriage can be traced back to only separate property funds, then the property purchased will be considered separate property because of the source of funds used to purchase it.
Where does this analysis leave the decision of who gets the dog? The short answer is that if you acquired the dog before marriage, it is your separate property and you get to keep it. If you acquired the dog during marriage and not with separate property funds (funds you had prior to marriage or through inheritance or gift), then the dog is community property to be divided by the court.
How will the court decide who gets the community property dog? There is no easy answer to this. In most cases, when there is community property to divide, the parties try to settle the issue between themselves by putting a value on the property and then when one party takes that property, half of the value is owed to the other party. In the case of a dog, the “value” is not monetary. After all, who is the only living creature at home that literally jumps up and down from pure joy just because you have come home? How can one put a monetary value on that? Well, while I was in court recently on a case that included the issue of who gets the dog, the very experienced and dog-loving judge told the parties that if they cannot decide between them and are willing to spend money on lawyers to fight it out in court, his decision will be based on questioning the parties under oath and asking them to truthfully tell the judge who the dog will run to if both of them called out to it. He also said that he understood that dogs, basically, have one human that they are closer to in each household and that if he finds out the party who is not the dog’s human has been trying to keep the dog away from his closest human companion, that will have a negative impact on that party’s credibility in his court.
The bottom line is that everyone who owns a dog knows who the dog prefers. Dogs cannot hide their emotions. Even Judge Judy on her show recently addressed this issue when two parties (not in a divorce) were claiming ownership of the dog. At the end Judge Judy, in a move perfect for television, allowed the dog to testify. She ordered the dog to be brought in and she saw to whom the dog ran and that was it. The truth is that parties in a divorce know to whom their dog will run. The smart thing to do is admit it, allow the dog to stay with its human and don’t waste time on lawyers to fight it out in court.
© 2018 Marina Manoukian