In many cases and to many people, dogs, cats, etc. are as much a beloved part of the family as any other family member. A pet cannot be divided like a set of china. Judges do NOT want to be in a position to have to decide where the family pets should go (in fact, judges would much prefer that the parties themselves agree upon the distribution of ALL property), but if the parties cannot do so, the judge will make that decision for them. Inevitably, one of the parties will be overjoyed with the judge’s decision, and the other will be crushed. Pets are often very intuitive, and they can feel the tension between their owners; being thrust into one home and losing the regular attention and affection of the other owner can cause fear and anxiety for the pets themselves. Additionally, if the divorcing couple has children, the children also can feel the crushing loss of their best friend.
In Virginia, Circuit Court judges are often asked to “Equitably Distribute” the property of a divorcing couple as a part of the divorce process. The Code of Virginia defines three types of property: 1. Separate property, which principally includes property that either party brought into the marriage, property received by one party during the marriage by inheritance or certain other means, and the proceeds earned from separate property; 2. Marital property, which includes property that is titled in both names, and property purchased or received during the marriage which is not determined to be separate; and 3. Property that is part separate and part marital, also known as “hybrid” property. If the parties are unable to divide their property by agreement, the judge can do it for them. With some types of property, this can be a relatively easy process. For instance, the funds held in a bank account can be divided between the parties in a way that the judge deems to be equitable. Be aware of the fact that Virginia law does NOT require that property be divided equally between the parties, as is often the case in so-called Community Property states; however, unless there is a reason not to divide property evenly, judges tend to allocate 50% of property to each of the spouses. A major exception to this tendency occurs in the situation where the court has to make a decision concerning a family pet.
Clearly, the best path for the divorcing couple is to arrive at a reasonable compromise, where the pet’s happiness and welfare are primary concerns. Of course, “reasonable” and “compromise” can be at a premium when a couple divorces, but they must each think of the pet as a family member, and NOT as a mere item of property that can be divided with each party getting half. In many cases, couples arrive at a pet sharing agreement similar to a custody and visitation agreement that might be used for the parties’ children. Paraphrasing a wise local judge, the parties must learn to love their pets more than they dislike each other.
Mike Walsh, a founding partner of Miller Walsh & Kutz PLLC, has more than thirty years of experience in dealing with these sorts of issues. Please don’t hesitate to contact our firm if we may be of assistance to you.