Five years ago, I was given what I considered to be the best Christmas present ever, a little Maltipoo from my then-significant other. As relationships sometimes go, we broke up. But, we both wanted to keep the dog. We argued. We talked. We attempted to “co-parent,” but that only worked for a while. So, the question remained, who gets to walk the dog now that we are facing a divorce? Who knew that pet custody could become such an issue in divorce.
In my situation, my ex purchased our dog and paid for the monthly pet insurance. I was given my Maltipoo at Christmas, spent most of the time with our dog, and paid for most of the grooming expenses. Even though we both had responsibilities, I believed I was the sole owner of “our” dog because he was given to me as a gift. I also believed that since my schedule was more flexible that I should be the only owner of “our” dog. Given the factors above (that my ex purchased and financed the dog, but I was the primary caregiver and it was given to me), we both had valid claims to “our” dog. But, what would the courts say?
When determining what a “gift” is, South Carolina law considers factors such as: the intent of the person giving the gift, the actual delivery of the gift, and the acceptance of the gift. In our scenario, my dog was intentionally purchased by my ex, was delivered to me, and I accepted the dog as a Christmas present. After sitting down and discussing this with my ex, we were able to amicably decide that I was the sole owner of my Maltipoo. It was a stressful situation, because as a pet parent, I couldn’t bear the thought of losing my dog.
In North Carolina, when dealing with the issue of a gift from one spouse to another, the Court requires the intention for it to be a gift and, therefore, the separate property of that spouse, must be specifically stated at the time the gift is given. This can result in a high burden of proof if you don’t have some evidence, such as a card, stating that the pet is indeed a gift.
However, divorcing couples do not always figure out who gets pet custody so easily.
When contemplating a divorce, most couples are concerned with the big issues such as: Alimony, Child Support, Property Division and Child Custody. With so many issues to resolve and the emotional strain that a divorce has on a family, it is easy to forget about little Fido until the bigger issues are resolved and then you realize you forgot to address who gets the family pet.
Traditionally, both South Carolina and North Carolina Courts treat pets as “marital property.” Treated as property, the courts can grant ownership of the pet to either party when distributing the other marital property involved in your case.
According to the American Pet Products Association at least 44 percent of households in America own at least one dog. As people are more frequently waiting until later in life to get married and have children, the argument that a pet is more than property has become the epicenter of some divorces. South Carolina first recognized dogs as property in a larceny case in 1899. North Carolina’s classification followed a similar history. Unfortunately, the law has not progressed much further since then.
Studies have shown that dogs are a source of companionship, support, and comfort for most dog owners. To pet parents, their pet is more than property; they are their best friend or their “fur-baby.” This extends beyond just a property interest. Each pet parent has a different relationship with their pet, which some courts have taken into consideration, when deciding ownership.
In a contentious divorce where both pet parents want ownership of the family pet, judges may consider such factors as:
- Who purchased the pet?
- Whether the pet was purchased as a “family pet,” would need to be determined.
- Was the pet purchased as a “gift”?
- Was the dog purchased on a holiday such as Christmas or a birthday?
- Is the pet registered with the Department of Natural Wild Life and/or who registered the pet?
- Whose name is the dog registered under?
- The work schedule of a party?
- Who has the most time to spend with the pet?
- The living conditions of each party?
- Who can provide the best quality of life for the pet?
- Who has the most resources to care for the pet?
- Who carries the pet insurance?
- If the divorcing couple has children, the attachment of the children to the pet could be a major factor in deciding ownership.
So the question remains, who will get custody of the pet in a divorce?
There is the adage that possession is nine-tenths of the law. While that is not necessarily an actual legal position, if one party already has the pet in their possession, it may bolster their position for ownership and even provide leverage for negotiating the terms regarding the pet. Negotiating a pet custody arrangement can be beneficial to both parties. This can include occasional visitation with the pet, or possibly allowing one party to care for the pet in lieu of boarding while traveling or pet daycare. The family pet can remain in their lives and neither party will have to feel the pain of losing them. Depending on the pet parents, this can be a workable solution.
However, in the event the parties cannot agree, a court is not likely to award “visitation” due to the ultimate legal treatment of the pet as property. Therefore, it can be in the best interest of all parties, including the pet, to consider the factors above when contemplating divorce. Having considered what actually happens to the family pet can help you strategize, have a plan and a course of action, if you want to walk away with your Fido still in your life.
When thinking about adding a new addition to your home, there is one important conversation that needs to be had before adopting or purchasing your new furry family member. A couple must discuss no matter how awkward the conversation may be, should things in the relationship go south, which owner will be given pet custody in the event of a divorce. Will I be walking away with the dog?
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