Big Question in California Divorce Cases: Who Gets the Dog?

“Dogs are our link to paradise. They don’t know evil or jealousy or discontent. To sit with a dog on a hillside on a glorious afternoon is to be back in Eden, where doing nothing was not boring–it was peace.”
Milan Kundera

It is estimated that about 50% of American marriages end in divorce. It is also estimated that 62% of American households include at least one pet. So, it is reasonable to conclude that many divorces also involve pets.

Do you consider your dog to be a highly adored member of the family? If so, you may be surprised to learn that most family law courts consider your ball-catching canine to be classified as personal property.

Divorces in California almost always include the division of property (assets and debts) between spouses. And sometimes, quite often in fact, the property is a dog. Since most courts consider pets to be personal property just like your toaster or car, judges usually follow the same guidelines they use to determine who gets to keep personal property when couples are dividing things in a divorce. All of this applies equally to cats but for some reason, it is the care and control of dogs more so than cats, that are disputed issues. California’s First District Court of Appeals recently considered a dispute over the family dog.

dog-3-1403648Husband and Wife entered into a stipulated agreement resolving most of the issues related to their divorce. However, they were unable to agree on what to do with Sadie, the family dog. The stalemate led to a two-day trial, after which a judge concluded that the pet was community property. The California Family Code requires community property to be split evenly between spouses. Courts often award the property to one spouse and require that person to compensate the other spouse for his or her interest in the property. Here, the trial judge awarded the dog to Husband, noting that Wife had maintained sole use and possession of the animal since Husband filed for divorce two years earlier.

Wife appealed the decision, arguing that her daughter from another marriage was the dog’s true owner. She said her daughter adopted Sadie and registered the animal with local authorities under her own name. Unfortunately, however, Wife didn’t point to any evidence in the record from the trial court hearing showing that this was actually the case. Moreover, the First District said she didn’t even provide a transcript of the proceedings. A person appealing a divorce decision is not required to provide the transcript of the proceedings, but courts in California typically don’t go and get those records on their own and are likely to presume that the decision was supported by adequate evidence if there is no transcript to review.

“In light of this slim record, we cannot conclude the trial court’s findings are contrary to the evidence,” the Court said. “The trial court’s findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record.” As a result, the Court affirmed the decision.

If the pet belonged to one spouse prior to the marriage, then it is reasonable it should belong to that person after the marriage. If this is an issue that must be litigated then the issue to be addressed is who cares for the pet. Who buys pet food and supplies, feeds it, takes it to the vet, walks it and cleans up? If the answer to these questions is you, then you can presumably gather evidence for this. Have your veterinarian sign a statement that it is you who brings the animal and ask a neighbor to verify that it is you who regularly walks the dog. Save pet supply store receipts with your signature on them. Get a copy of the license from the city clerk with your signature. All of this can be used as evidence that you are the primary (or sole!) caretaker of your beloved animal, you deserve to have him live with you after your divorce. Other issues to consider are children as if often makes sense for an animal to live primarily with the kids. And whose lifestyle is better suited to caring for the pet? Long hours and frequent travel may not be best for Fido. But better than litigating over Fido, is to talk about the options and work together to create the best outcome for all.

So, although we think of our pets more like children, courts do not and don’t apply the same laws in making these determinations. But spouses who are willing to stay out of court can create a pet parenting plan that works for all, and may be something to consider, especially if it helps lessen the sense of loss that happens with divorce.

Similar to a child custody and visitation agreement, you and your ex can agree on who pays for vet bills, who is responsible for visitation travel, and the date and time for visitation. Have your pet parenting plan formalized by incorporating it into your written divorce agreement. This is important because the courts have no power to make orders regarding pet custody since pets are considered “property.” The same custody rights that children are afforded are not the same with your pet.

The good news is that divorcing spouses can avoid much of the stress and costs associated with litigation by deciding on their own how they will resolve certain issues, and through alternatives like collaborative divorce and mediation. If you’re considering a divorce in California consider a less adversarial process such as mediation or Collaborative divorce. With offices throughout the Bay Area, divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.

Related blog posts:

Why Divorcing Spouses Should Consider Avoiding the California Court System, an Example – In re Marriage of Ma

Untangling Shared Business Interests in California Divorce Cases – In re Marriage of Greaux and Mermin

Bankruptcy, Divorce and Community Property – In re Marriage of Rynda