To many couples, their dog is more than a pet or piece of property, but is a member of the family. When couples make the decision to get a divorce, the issue of who gets the dog can be a deeply emotional one. Will the couple share custody, have sole custody with visitation, split the pets, or have one party get sole custody with no visitation rights? While the couple may consider the dog a member of the family, California courts look at the fury friend as personal property, much like a car or TV. This means who gets the dog is based on community personal property laws, and factors like who takes care of the dog, who remembers to feed him/her, or take him/her for walks will only be marginally considered. Instead, the Court is going to consider things like the date of purchase, whether a gift was intended, and what monetary value is associated with the dog. From a legal perspective, this is the same inquiry you would go through when determining who gets the furniture, but from the owner’s perspective, this is going to feel like actually splitting the “baby” in half. So how is the law going to “divide” Fido?
The first question is whether the dog is community or separate property. The court will look at when the dog was acquired. This means when the dog was purchased or, if you’re a true animal lover, when your pet was adopted. If the dog was purchased or adopted by one person prior to marriage, then the dog is that spouse’s separate property, and will remain with the original owner.
If the dog was adopted or purchased during the marriage, the next question is why was it? Was the dog purchased together, to be both parties’ pet, or was it purchased by one person as a gift to the other? If the dog was purchased/adopted during marriage, then the dog is community property, and the Court will need to award the dog to one party over the other. If however, the dog was a gift, the issue of transmutation arises. Transmutation is the change in character of property during the marriage. To be a valid transmutation, you generally need a writing with an express declaration of the property that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. There is an exception to the signed writing requirement; if the gift is an interspousal gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made, and the gift is not substantial in value taking into account the financial circumstances of the marriage (Cal. Fam. Code section 852).
If the dog was acquired during the marriage and is considered community property, the Court will need to determine which spouse to award the dog to. Although dogs are still primarily looked at as personal property, there is a growing tendency among judges to determine ownership of the dog based on the interests of the pet. California Family Code Section 6320 allows the judge to issue a protective order granting exclusive care, possession or control of a domestic animal to one spouse if there is a showing of good cause that there is a risk of the other spouse harming the animal. Judges are beginning to consider what is best for the pet, rather than just looking at them as property. The judge may consider if there are kids and which spouse will be awarded their custody, who has the financial ability to care for the animal, who the dog is attached to, and if one party will be dangerous to the animal.
While the court will determine where the dog will go in the event the parties cannot agree, it is important to know that you can determine who gets the dog outside of court, as you would any other personal property, in a settlement agreement. This means you can determine who gets custody of the dog, set a visitation schedule, decide who is responsible for transporting the dog, who will pay for vet visits, food, and other needs, etc. Further, the rules discussed above do not just apply to dogs, but will apply to any other furry or winged friends at issue.
If you are seeking information or counsel regarding divorce, division of assets, or, more specifically, who will get the pet in the event of divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.