Among the countless emotional issues that must be dealt with by families coping with divorce, a point of confusion for many people is what happens to their beloved pets. Although many people feel that their pets are part of the family, pets are considered personal property under Virginia law (Va. Code Ann. § 3.2-6585). If the divorcing couple cannot agree on who will continue to own and care for the family pet, the court will decide. While it may seem fair for the court to come to an arrangement much like they would for custody of a child, the court will not allow shared custody or visitation of an animal. Because pets are viewed as property, the court deals with them just as it would a television, automobile, or any personal property acquired during the marriage.
Virginia courts use a three step process to determine who gets to keep property acquired during the marriage. Because pets are considered personal property, the court must first determine if the pet would be considered marital property, separate property, or a hybrid of the two. Next, the court must place a value on the pet. Last, the court determines who keeps the pet in accordance with a set of statutory guidelines. The guidelines include contributions (monetary and nonmonetary) to the well-being of the family and to the property in question, the circumstances surrounding the dissolution of the marriage, and how and when the property was acquired. The court has the discretion to determine what weight to assign to each factor.
In recent a Virginia case [Whitmore v. Whitmore, 2011 WL 588497 (Va. Ct. App. 2011)] the court looked at whether each spouse had contributed to the well-being of the family dog, which had participated in the procurement, care, training, and maintenance of the dog, and which had played a significant role in the dog’s life up to the point of divorce. The court ultimately awarded the dog to the wife, mainly because the dog stayed with the wife after the husband moved out of the marital home. The court reasoned that the wife owned the home, planned to continue to reside there, and provided the dog with a stable and caring environment. Consistent with the division of other marital property, the court ordered the wife to pay her husband the cost of the dog.
If the parties are able to come to a separation agreement, it may be in the best interests of both parties to address the continued ownership of the family pet, and to consider whether a custody and visitation type arrangement by agreement would be beneficial. Including a custody and visitation arrangement in a separation agreement allows both parties to continue to enjoy the companionship of the pet. Of course, it also continues the parties’ ties to each other that may not otherwise be necessary, and raises issues about apportionment of the expenses incurred for the pet. Pet custody/visitation may be an important in issue where the parties have children who are emotionally attached to the family pet, or who are experiencing separation issues during visitation that may be soothed by the presence of their beloved pet. This is an important issue to bring up with your family lawyer to help your come to the best decision for your family.
An outstanding job on my case to have custody, visitation and support decided in my home state instead of Virginia after I separated from military service.- A.E.