Who gets the pet in a divorce?

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Special to the Recorder

Americans love their pets. In fact, 68 percent of U.S. households have at least one pet, according to the latest National Pet Owners Survey. But whether a pet is treated like a child or spoiled like a grandchild, pets are often an important part of the family. That’s why the question of who gets “custody” of the family pet may become hotly contested in a divorce.

While the term “custody” is associated with children in a divorce, family pets are not treated like children under the law. If you are attached to your pet, brace yourself for the legal reality.

The legal standing of pets derives from Western European law a few hundred years ago, which is the source of many of our laws. Historically, animals were used for work and food, and their value was based on what they could produce. The family horse, cow and pig were all considered property – the same as tools, wagons and furniture. Although the value modern Americans place on family animals changed, their legal status is unchanged. Thus, our dogs, cats, parakeets and tropical fish are all considered property under the law.

In Florida, the first question when determining who gets the family pet might be whether it is considered “marital” or “nonmarital” property. If one party owned the pet prior to marriage, then the pet is nonmarital and should go with the spouse who owned it before the marriage. If the pet was acquired during the marriage, ownership might depend on how it was acquired. If a spouse received the pet as a gift from someone other than his or her spouse, it might be considered nonmarital, whereas a purchase during the marriage is more likely marital.

If parties do not agree on the disposition of the pet, a judge will make the decision. When a pet is considered marital, the judge will also determine its value and who gets it.

Since the vast majority of divorce cases are settled by agreement of the parties, a pet may be the subject of negotiations. The compassionate person might believe the pet should go where it will be best loved. The pragmatist might consider who will best care for the pet. And, for the heartless, the pet can be a bargaining chip to be used for leverage in negotiations.

However, most disputes about pets rarely make it to a judge for determination. Instead, people usually resolve their pet issues by agreement. Often, pets go with the children or with the spouse who is most attached to it. In some cases, both humans cannot bear to part with their pet and actually split time with it – similar to a timesharing arrangement with a child.

As with most matters in divorce cases, the outcomes vary by the humans involved. Undoubtedly, the subject of pets is often emotional, especially if they become involved in the owners’ legal dispute. Nonetheless, reasonable people balance the best interests of the pet against the best interests of the person.

Lawrence Datz is a partner at Datz & Datz, P.A. with more than 30 years of family law experience. He is board certified in marital and family law, a fellow of the American Academy of Matrimonial Lawyers and a master in the Florida Family Law Inn of Court.

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