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Dogs in a Divorce: Who Gets Custody of the Pets?

Pets can be a contentious issue in a divorce. While many think of pets as family, the question that really must be answered is how are they viewed by the court?

Dogs and other pets are often thought of as part of the family. When facing divorce, many clients want to know what happens to Fido or Fluffy? Since the dawn of man it has been commonplace for people to buy, sell or donate animals either through private transactions or brokers (i.e. a pet store, auctions, etc.). With that historical context in mind, one could only conclude that when it comes to divorce, pets being the commodities that they are, they are subject to division/disposition by the court. At the end of the day, that is true – pets are for all intents and purposes are personal property and the courts will treat them as such. However, there are rare exceptions: Of particular note, in 2010, a Calvert County, Maryland Judge ordered that a childless divorcing couple share “custody” of their dog (which they acquired during the marriage) with each party getting the dog six months out of the year. While the parties and their attorneys were surprised by the ruling, they were not displeased and did not appeal. If they had, the Maryland Court of Special Appeals would most certainly have admonished the trial Judge for taking an action he had no authority under the law to take. Had the Judge followed the law, in the absence of an agreement by the parties, he would have ordered the dog sold as he would do with a house, piano or toaster-oven, absent a party claiming/proving sole title to the animal.

Who Owns the Dog in a Divorce?

But what if you are a spouse who brings a pet into the marriage? Don’t you have the right to keep that pet as your own upon divorce? And can your soon to be ex-spouse make any claim to the pet because they have now become “attached” to it? The answer is no. In this instance the pet would be considered pre-marital property and only the spouse bringing the pet into the marriage would have a claim to it. While theoretically the court could decide to do what the Judge in Calvert County did, they would have less justification for doing so (not that there was any justification in the first place). In a recent case in Montgomery County (unreported), the Court ordered that the parties had thirty (30) days to agree upon a division of the personal property, including the dogs, and failure to do so would result in the appointment of a trustee to sell all of the personal property and the dogs.

Pet Custody Agreements

The good news is parties can agree amongst themselves how to handle their pets without any input from the court. How the parties handle the pet is entirely up to them. However, certain factors and issues should be considered when coming to an agreement:

  1. A “visitation” schedule may seem like a good idea at the time, but it is important to think about it in the long term. Will the parties be able to “stick” to the schedule? How well does the pet deal with being shuffled around from home to home? And would doing so possibly have long term detrimental effects on the pet? If the parties disagree at a later time about the “visitation” schedule, the court would have no power to modify the access schedule absent an agreement between the parties.
  2. How will vet bills be paid? By the party who has the pet with them at the time of the visit or will all bills be split equally?
  3. In the sad event that the vet recommends the pet be put down – do both parties need to consent? If not, who pays for continued care?
  4. If the pet dies who decides on disposition of the remains? Pet cemetery? Cremation?

These are just a few issues to consider and considering them may make the parties realize that there are bigger issues to worry about. But, as in the case of the couple in Calvert County, sometimes pets are the “bigger issue”. However, if they are unable to reach an agreement, what the Judge in Calvert County did will not be the likely outcome. Therefore reaching an agreement is the best solution to the problem.

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