In divorce, who gets the pets can become one of the most emotional and troubling issues between spouses. Litigants assume and expect that the legal system has an issue for this. It is a reasonable expectation, right?
Well, the law of most states, including Maryland, has not caught up to the reality that the majority of homes have pets, so upon divorce, there is a question who gets the pets.
Below is a leading international legal article on the topic of pet custody, because you will not find dozens of cases from across the country on this topic: http://lawfam.oxfordjournals.org/content/28/2/177.full
Let’s take a look at how a Maryland court is likely to address this issue. In Maryland, pets are property, the same way a vehicle is property or a bank account is property. Vehicles have titles, so you know exactly who owns them. Of course, when they are jointly titled, that creates a further complication. Bank accounts are the same. Retirement accounts are not. Retirement accounts are always only titled in the name of one person. Therefore, ownership of the account is clear.
Most often, registration papers for domestic animals are also solely in the name of one person, and evidence of this is helpful to a judge in determining who gets the animal.
In Maryland, courts are required to (1) identify all of the marital and non-marital property, including whose name the property is in (yes, that means if you had the dog before marriage, the dog is yours, (2) value the property (usually either the purchase price or the market/replacement value of getting a new dog), and (3) equitably divide the marital property of the parties.
What the heck does that mean, to equitably divide a pet? Why can’t the court just award custody and visitation over the pet? Because the Maryland Legislature refuses to create a statute allowing for this. It is not the fault of the courts, which, believe me, can have a lot of fault. No, this one is totally on the Legislature.
So, what do you do? Negotiate! I routinely have clients who will pay a specific additional sum of money, often retirement assets, to keep the family pet.
If you are facing a divorce that will include who gets the pet, please get to a highly experienced divorce attorney quickly.
Some people say possession is 90% of the law. Sometimes it is, sometimes it is not. In this case, make sure the title to the pet is in your name, where possible. Then talk with an attorney, and take it from there.
One last story about my client who spent $50,000.00 on the courthouse steps to keep the family dog. The dog died less than a year later.