Several years ago there was a well known San Diego Divorce case that involved the divorcing couple fighting over ownership of their dog. The Judge had allowed the couple to put on an entire trial over ownership and “custody” of the dog after which the Judge made orders as to who would receive ownership. At that time there were not any applicable statutes or case law specifically on the issue and the family pet was to be treated as any other asset accumulated by the couple during the marriage. On January 1, 2018 Family Code Section 2605 became law which provided a little more guidance on how the Court was to deal with pets in divorce. The new statute states, “the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.” The statute also provides for the Court making orders earlier in the case for the interim care of pets. This week we review some of the considerations involved with pets and divorce, including ownership rights, financial responsibility, child considerations, and sharing options.
There was a time during my law school days and my early years of practicing law when my most prized possession in all the world was my cat, Terrapin. His name came from a pretty good Grateful Dead song and he lived up to the name as he was regal, majestic, dignified, playful, and magnificent. His black and white coat was almost a tuxedo and he kept it pristine, shiny and well groomed. He would go for leashless walks with me around the block as if he were a dog and at bedtime he would knead my side a little bit then stretch out, belly up beside me, to sleep. We would play games of hide and seek where I would hide in obvious places and he would seek me out, and dramatically pounce on me victoriously when he found me. He drew a line in the sand when I took him down to Sunset Cliffs in Ocean Beach to teach him to become a surf cat. He pressed himself as close to the cliffs as possible as far from the breaking waves as he could get. No, that was asking a little bit too much. One time he took a small jawbreaker candy and juggled it back and forth with his two front paws then would flip it into his mouth to suck on it for a moment then back out juggling it between his paws. He did this for about five minutes without letting it fall to the floor. One time he got frightened up to the very tip top of a large tree in the neighbor’s yard. He was so far up I could barely hear his meowing. When the tuna can trick didn’t work to get him to come down I climbed way up to get him, with him clinging to me tightly the entire descent. He would have done the same thing for me if the roles were reversed.
I belabor the description of Terrapin to illustrate the important relationship that many of us have with our pets. They are much more like our children than our possessions. They shower us with love, appreciation, support and friendship. We can simply go out to check the mail and when we come back into the house it is as if we have just returned from a long journey with tails wagging and licks to celebrate our return. The relationships we have with them are irreplaceable. I have thankfully never had to fight in Court for a client over the sharing of the family pet. I have worked with a number of couples in mediation to tackle the issues surrounding pets. These issues include determining how responsibility will be shared and discussing how everyone might be given an opportunity to maintain their relationship with the pet.
Ownership The new pet statute in California addresses assuring that the pet is cared for during the pendency of the divorce then addresses ownership upon the conclusion of the divorce. In this regard the Court determines if the pet is a community asset or is one spouse’s separate property. Terrapin was gifted to me by my then girlfriend, who now is my Wife. If we had sought to divorce while Terrapin was still around, I would have been able to assert that he was my separate property. Sorry Terrapin for treating you like you were a possession. Pets that are obtained during marriage are presumed to be community property and therefore both spouses have a property claim and argument to receive them at divorce. Family Code 2605 uniquely gives the Court the ability to award the pet to one spouse or to have the parties remain joint owners. While the statute does not address the Court making “custody” type orders for the sharing of a pet, if the Judge opts to order joint ownership then they would additionally need to include some sort of directive about how the sharing of the pet would be split.
Responsibility When the Court is considering pet related orders, part of the consideration is to assure the needs of the pet will be met. The statute defines care as “the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.” With the joy of pet ownership comes the financial costs. During divorce the financial picture might get a little more challenging so having the added costs related to the care of a pet might be less desirable. When pets get older their expenses might increase dramatically, such as for when they need specialized diet, or are having health problems giving rise to substantial vet bills. Another big financial consideration is housing. Obtaining a place that will accommodate a pet is often more expensive, or requires additional deposits to insure against damages. Couples who have had a longstanding family pet might agree to share equally in mutually agreed upon vet related and other expenses surrounding the care of the pet.
The other responsibility part of pets is assuring that they get sufficient attention. Terrapin was one of those rare cats that would go on walks, but when it comes to dogs they are in greater need to be taken on walks and the opportunity to be outside running around. Having a yard for them to run around in or finding time before and after work to take them to the dog park, or out for a walk is part of the commitment. I have worked with couples who might have the pet live with one while providing the other with the opportunity to take the pet out for exercise and bonding from time to time.
Pets and Children Often the children have close relationships with the pets, or the pets actually belong to the children. The parents can work together to fashion a sharing arrangement considering the needs of the children. One option is to have the pet stay with the children as they move back and forth between the two homes. If one of the homes cannot accommodate the pet then the pet can remain in the one home with that party providing the care while the children are with the other parent.
Working Together There are many considerations when sorting out what to do with the family pet in divorce. With the relatively new statute addressing pets the Court is empowered to make orders about where they will live, and how they will be shared. In mediation couples can explore reaching agreements that allow for each spouse as well as the children to continue enjoying an ongoing relationship with the pet. Whether sharing in vet bills, having the opportunity to take the pet out for some activity, having the pet go back and forth between homes with the children, or deciding to have the pet remain with one party, there are lots of options. If you are able to work with one another there is no reason that your relationship with the family pet should suffer.