Happy times! But who gets the dog?
Remember Jon and Kate Gosselin from TLC’s “Jon and Kate Plus 8″–now “Kate Plus 8″? During their 2009 Pennsylvania divorce, a frustrated Jon returned the family’s German Shepherds, Shoka and Nala, to the dogs’ breeder. Jon couldn’t move the pets into his New York City apartment. And housing the dogs at the couples’ Wernersville, PA, home while sharing pet responsibilities, and tensions, with Kate didn’t work either. Fortunately in the Gosselin case, breeder Jeff Christopher was willing to take the dogs back and keep them “indefinitely.” That may leave you asking: who gets the dog in a divorce?
Here’s some statistical food for thought. According to the American Pet Products Association (APPA) 2009/2010 National Pet Owners Survey, 62% of U.S.households own a pet. In its pet ownership breakdown, the APPA reports that 77.5 million dogs live with 45.6 million households, 93.6 million cats live with 38.2 million households, 13.3 million equines live with 3.9 million households, and 15.0 million birds live with 6.0 million households. Clearly, a lot of pets are living with families that will experience divorce.
So how does Arizona deal with pets in divorce?
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By law, property acquired during marriage is presumed to be community property, which is Arizona’s marital property. If one spouse proves that a pet was acquired before the marriage, for example, and so is separate property, then the community property presumption is overcome. Basically, he would be awarded the animal because it was never “theirs” it was always “his.” In a divorce or legal separation, community property must be divided, resulting in the property settlement. When the pet is community property, the animal’s best interest doesn’t apply, at least not directly. But early July brought news of a somewhat curious Maryland case.
Some think it could be the beginning of a healthy change in how pets are handled in divorce. In Maryland, as elsewhere, if a pet is marital property and the couple can’t settle on who is to get it, then the law requires that the animal be sold and the proceeds divided. Well, apparently Judge Graydon S. McKee III felt that the law was a bit too harsh. He ordered Gale and Craig Myers to share pet custody of the marital canine known as “Lucky” the Lhaso apso. Lucky will spend six months with Gale and six months with Craig. As neither party objected to the judge’s novel decision, it is final. McKee: “It was very clear that both of them love this dog equally…The only fair thing to do was to give each one an equal chance to share in the love of the dog.” Love of the dog? Now that is something novel in the law!
One thing is assured. The more time spent debating the future of the family’s furry or feathered companion, the more rancorous a divorce can become. So, if a prenuptial agreement is in the works in contemplation of marriage, consider designing your pet’s future in advance. And when a divorce is imminent or pending, consider divorce mediation. With mediation, the couple has a less formal forum where they may fully express their views, concerns, needs, goals and, yes, pet matters.
While the mediator makes useful suggestions, the couple will analyze long and short term options, bargain, reorganize, rethink, and reevaluate. With community property pet issues, the neutral mediator outlines points of agreement and points of contention. The animal’s history with the family. Who purchased, fed, trained, exercised and cared for the animal? How the pet will be cared for in the future? What is in the best pet interests of the children? All are important considerations in the alternative dispute resolution (ADR) process.
When divorce mediation successfully ends with a memorandum of understanding between the parties on issues of pet custody and visitation, then a separation agreement covering the animal’s future may be incorporated into the decree of dissolution.
Whether it’s a prenuptial agreement, divorce mediation, or settlement agreement, the family law attorneys at the family Law Offices of Scott David Stewart provide resourceful legal options for families making tough pet custody decisions.
