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Who gets the Dogs, Cats, And Pets in Divorce? Part 2 of 2

In the second part of this Blog, I will review Virginia case law on the subject of how courts have dealt with pets in divorce cases.

The National Legal Research Group has researched the court cases on division of pets in a divorce case. No published Virginia case law considers the division of pets in a divorce case.

In Virginia, the issue arose in the unpublished case of Whitmore v. Whitmore, No. 1644-10-4, 2011 WL 588497 (Va. Ct. App. Feb. 22, 2011). Whitmore relied on Code § 3.2-6585, which states that "[a]ll dogs and cats shall be deemed personal property." Va. Code Ann. § 3.2-6585. It therefore held that dogs are property, to be divided under the terms of Code § 20-107.3.

The pet at issue in Whitmore was a dog. The dog had been acquired during the marriage, and was therefore marital property. The wife had primarily cared for the dog during the marriage. The trial court awarded the dog to the wife, and the Virginia Court of Appeals affirmed:

Although the evidence clearly showed that both parties had bonded with and cared for the dog, we cannot say the trial court abused its discretion by awarding wife possession of the dog on the ground that the dog had resided with wife since the parties acquired her. The evidence showed that wife owned the residence, she planned to continue residing there, and she provided the dog with a stable and caring environment at the residence. We also find that the trial court did not err in declining to establish a visitation or a shared custody schedule with the dog similar to that ordered in child custody cases. Accordingly, under the circumstances of this case, we cannot say the trial court abused its discretion by awarding the dog to wife and awarding $750 to husband to acquire a similar dog.

2011 WL 588497, at *4.

While Whitmore treated a dog as personal property, it recognized that dogs are a particular kind of personal property, subject to certain unique considerations:

Furthermore, when addressing what the trial court referred to as the "problematic" issue of placing a value on the dog, the trial court noted that a dog has a unique "intrinsic value" because the parties care for the dog and have a "significant interest" in the dog. The trial court also made clear that it did not "in any way want to minimize the significance of a pet in a person's life." Therefore, the record shows the trial court considered the unique circumstances presented in determining the equitable distribution of the dog.

Id. Dividing a dog is therefore somewhat different from dividing a boat or a car. The court must recognize "the significance of a pet in a person's life," and must consider the "unique circumstances" that arise when dividing a piece of "property" that is alive, and has its own wants and interests.

Whitmore is consistent with treatment of pets in divorce cases generally. "Dogs, cats and other pets fall within the definition of property." 1 Brett R. Turner, Equitable Distribution of Property § 5:9, at 277 (3d ed. 2005). Turner elaborates:

Because pets constitute a form of personal property, it is error to consider directly the best interests of the pet, as the court would consider the best interests of the child in determining custody or visitation. See Bennett v. Bennett, 655 So. 2d 109 (Fla. Dist. Ct. App. 1st Dist. 1995) (family dog should have been treated as property under equitable distribution statute; error to award custody and visitation by analogy to law of child custody); Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230 (2002), appeal denied, 572 Pa. 757, 818 A.2d 504 (2003) ("[d]espite the status owners bestow on their pets, Pennsylvania law considers dogs to be personal property.") . . .

It is sometimes possible to consider the bests [sic] interests of the pet indirectly, however. Courts often consider as one factor in dividing marital property the sentimental value of particular assets to each party. See, generally, §8:32. The party who is most attached to the pet is often the party who is the best custodian. Thus, an argument based on sentimental value can sometimes be used to award the family pet to the spouse who is the better caretaker.

Id. at 277 n.14. Another author notes:

. . . [A] family pet is an item of personal property, and principles concerning the classification of this property apply. Once it is determined, however, that the family pet is marital property or that the court has the authority to award the family pet to one party or the other, then the court may consider who would better care for the pet and who has the greater attachment to the pet. This is really no different from the many cases that award a particular piece of property to the party that asserts a greater sentimental value to an item of property.

Laura W. Morgan, "Who Gets Fluffy? Division of Pets In Divorce Cases," 11 No. 6 Divorce Litig. 113 (June 1999).

The "sentimental value" approach suggested by Turner and Morgan is similar to Whitmore's holding that the court should consider "the significance of a pet in a person's life," and the "unique circumstances" of pets as compared to other forms of property.

Code § 20-107.3(E) does not directly list sentimental value as a factor to be considered. The statute does permit consideration, however, of "[s]uch other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award." Va. Code Ann. § 20-107.3(E)(11). In Robinette v. Robinette, 10 Va. App. 480, 393 S.E.2d 629 (1990), the court affirmed a trial court decision that relied upon § 20-107.3(E)(11) in awarding the wife a farm that had been in her family since 1793. That result essentially considered sentimental value as a division factor.

Whitmore awarded the dog to the wife, primarily because she was the spouse who was mainly responsible for caring for the dog.

There are two recent cases that particularly discuss the "unique circumstances" that must be considered when the court considers division of pets. The first case is Travis v. Murray, 42 Misc. 3d 447, 977 N.Y.S.2d 621 (Sup. Ct. 2013). Travis adopted a "best for all concerned" test:

To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable. This does not mean, however, that cases like this one, in which it appears that each spouse views the dog as a family member and sincerely believes that he would be better off in her care, should be given short shrift. After all, matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.

With this in mind, it is appropriate that the parties here be given a full hearing. Full does not mean extended; the hearing shall not exceed one day. The standard to be applied will be what is "best for all concerned," the standard utilized in Raymond. In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York?

Id. at 459-60, 977 N.Y.S.2d at 631 (citing Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1999)).

I. Who Bore The Major Responsibility For Meeting [The Pet's] Needs (I.e., Feeding, Walking, Grooming, And Taking Him To The Veterinarian) When The Parties Lived Together?

II. Who Spent More Time With [The Pet] On A Regular Basis?

III. Why Did Plaintiff Leave [The Pet] With Defendant, As Defendant Alleges, At The Time The Couple Separated?

The second case is Hament v. Baker, 2014 VT 39, 2014 WL 1657535, a published opinion. The case involved ownership of Belle, an 11 year old German wirehaired pointer. The court held that pets are a special kind of property:

This Court has consistently ruled that pet animals are property. [Citations omitted.] But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment.

Id. ¶ 8.

Reviewing Vermont's equitable distribution statute, the court noted that "[f]ew of the statutory factors which appear in § 751(b) apply to the equitable distribution of a pet." Id. ¶ 11. But the Vermont statute, like § 20-107.3, is a catchall factor. The court held that certain factors unique to pets fall under that factor:

In the case of pets, we hold that the family division may consider other factors not set out in the statute: the welfare of the animal and the emotional connection between the animal and each spouse. These factors underlie our animal welfare laws and our case law, which recognizes the value of the bond between the animal and its owner. See Morgan, 167 Vt. at 103, 702 A.2d at 633 ("Like most pets, [a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions."). Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses.

Id. ¶ 13 (court's emphasis).

In sum, while pets are personal property, pets are not divided in the same manner as cars and boats and houses. Dogs, cats, birds, and all pets are living creatures, with a mind and awareness of their own. The court cannot consider the best interests of a pet in the same manner that it considers the best interests of children, but it can and should consider the "unique circumstances" that exist when a piece of property is a living creature. Ordinarily, possession of pets should be awarded to the spouse who has cared for the pets most regularly in the past, and to whom the pets have a stronger attachment with the spouse and children. The problem is you may find a judge who just does not want to get involved in the pet issue and will demand that you and your spouse settle the custody of the pet on your own. If you cannot resolve this between yourselves, tou can go to a mediator or arbitrator.

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