Who gets the dog?

And other difficult issues . . .

By RAY ADLER
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Who gets the dog in the divorce?

It has been reported that almost 80 million U.S. households, or roughly two-thirds, own a pet, according to a 2015 survey from the American Pet Products Association. For every five American couples who get married in a given year, two couples get divorced. Many families without children treat their pets as family members. Who gets custody of the companion animals?

In one Indiana case it was argued that “T.G. has emotional attachments to at least one of the horses and one of the cats.” It was argued that the emotional attachment should be considered by the court in dividing the property. The argument went on:

“Bobbie next argues the trial court erred when it awarded the horses to Russell stating that ‘because [the horses] are living beings, they cannot be distributed in the same manner as personal property.’ Bobbie argues that the trial court should ‘take into consideration the relationship the animal has with the various parties, as well as the needs of the animal and the likelihood that one of the parties will be better able to financially care for it.’ Id. … In addition, the law is clear that animals are personal property subject to distribution by the trial court. … (‘However unfeeling it may seem, the bottom line is that a dog is personal property’).” Green v. Green, No. 63A04-0806-CV-350, 2009 Ind. App. Unpub. LEXIS 46, at 17-18 (Ct. App. Jan. 12, 2009).

Indiana law sees pets as property, no different from a tractor or pension plan. Many pets have little or no value that could be used in the bargaining process except for the emotional attachment that one party may have. In Indiana, judges have great discretion in dividing up the marital estate. They start with the presumption of a 50-50 division. If pets have no value or nominal legal value, they are not a large consideration.

In more complicated matters, mediation is often ordered before a final court hearing. There a broad range of arguments can be made concerning distribution of the pets. If there are children, will distribution to one parent or the other be in the children’s best interest? Who purchased the pet? Who cared for the pet? Who took the pet to the veterinarian? Who purchased food and supplies for the pet? Was a pet normally called dad’s dog or mother’s cat? Do you really have the time and resources to care for the pet as a single person? Perhaps a joint custody arrangement could be agreed-upon where each party receives the pet for a period of time.

Of course other difficult issues can arise in divorce. Who gets the husband’s family’s Bible given as a gift to the wife? What should be done with fertilized eggs when one spouse wants to have another child after divorce? Who owns tissue samples of one child needed by another? What if a pregnant spouse wants to abort and the other one doesn’t? Who owns the valuable MP3s, the downloads etc. that cannot be legally duplicated? Who owns the frequent flyer miles? What about the spouse who donated a kidney to the other spouse prior to the divorce and now wants it back?

Sometimes I’ve seen families split up several million dollars in a divorce in an hour and argue over the emotional issues, such as a pet, for eight more hours! Mediation allows the parties to craft unique settlements with more than just legal considerations. Be sure to consult with your attorney if you have questions about your rights.

Educational material and not legal advice, written by the team at Adler attorneys. Email andrea@noblesvilleattorney.com with questions or comments.