As always, before reading today's blog post, please check out my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.
Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.
The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.
First and Foremost: Pets are Property
No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.
Marital Property vs. Separate Property
Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.
If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).
One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).
Division by Agreement
Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.
As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.
Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.
Division by Court
If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."
For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.
It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.
However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.
The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.
All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.
A Brief Note About Protective Orders
Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.
In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.
Conclusion
While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
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