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    The Lawletter Blog

    FAMILY LAW: Equitable Distribution of the Family Pet

    Posted by Gale Burns on Mon, Oct 27, 2014 @ 15:10 PM

    Brett Turner, Senior Attorney, National Legal Research Group

         Disputes over division of family pets pose difficult problems for courts in divorce cases. Courts are often asked to treat pets as they treat children, awarding custody and visitation rights. But such treatment would make divorce cases harder to resolve, and supervising pet visitation rights would be a material burden upon judges. With great regularity, therefore, courts have held that pets are treated as property under equitable distribution statutes, and not as children under custody and visitation statutes. See generally 1 Brett R. Turner, Equitable Distribution of Property § 5:9 (3d ed. 2005).

         But equitable distribution statutes are not especially well suited to divide pets, either, as most equitable distribution factors focus upon property with economic value. Pets have little economic value, but their personal and sentimental value can be very substantial.

         Faced with contested cases involving division of pets, courts have struggled to accommodate the unique factors that apply when a piece of marital property is a living being, with its own wants and desires. Two recent cases demonstrate the state of the struggle.

         In Hament v. Baker, 2014 VT 39, 97 A.3d 461, the court was asked to determine which spouse would receive ownership of Belle, an 11-year-old German wirehaired pointer. The court held that pets are a special kind of property:

         This Court has consistently ruled that pet animals are property. [Citations omitted.] But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment.

    Id. ¶ 8, 97 A.3d at 463.

         Reviewing Vermont's equitable distribution statute, the court noted that "[f]ew of the statutory factors which appear in § 751(b) apply to the equitable distribution of a pet." Id. ¶ 11, 97 A.3d at 463. But the Vermont statute, like equitable distribution statutes in most states, has a catchall factor. The court held that certain factors unique to pets fall under that factor:

         In the case of pets, we hold that the family division may consider other factors not set out in the statute: the welfare of the animal and the emotional connection between the animal and each spouse. These factors underlie our animal welfare laws and our case law, which recognizes the value of the bond between the animal and its owner. See Morgan, 167 Vt. at 103, 702 A.2d at 633 ("Like most pets, [a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions."). Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses.

    Id. ¶ 13, 97 A.3d at 464 (court's emphasis).

         In Travis v. Murray, 977 N.Y.S.2d 621 (Sup. Ct. 2013), the issue was ownership of Joey, a two-and-one-half-year-old miniature dachshund. The court emphatically refused to apply custody and visitation law:

    To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable.

    Id. at 631. But the court also refused to hold that pets are just like nonliving property. On the contrary, cases involving division of pets are important enough to be taken seriously by the judiciary:

    [The fact that pets are property] does not mean, however, that cases like this one, in which it appears that each spouse views the dog as a family member and sincerely believes that he would be better off in her care, should be given short shrift. After all, matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet.

    Id. The court adopted a "best for all concerned" test:

         With this in mind, it is appropriate that the parties here be given a full hearing. Full does not mean extended; the hearing shall not exceed one day. The standard to be applied will be what is "best for all concerned," the standard utilized in Raymond [v. Lachmann, 695 N.Y.S.2d 308 (App. Div. 1999)]. In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York?

    Id.

         Hament and Travis are some evidence of a trend toward treating division of pets in a manner that is perhaps somewhat more sensitive to the needs and desires of pets than is seen in cases simply treating pets as another form of property. This trend is reasonable when viewed in isolation, but the critical question is whether it will require the courts to spend more time and effort on division of pets than judges are willing to spend. Only time can tell whether the movement toward a more sensitive division of family pets will continue.

    Topics: pets as property under distribution statutes, equitable distribution, ownership of family pet in divorce cases

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