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Who Keeps the Pet?

By Michelle Brooker
Edited by Nicholas Gregson

The strong bond between an owner and their pet cannot be understated. Whether we’re talking about a dog, cat, goldfish or a Llama, owners often treat their pets almost like children and, for many, they are an inseparable part of the family. Since we care so strongly for our pets, they can be just as much a point of contention as child custody – however, your pet doesn’t enjoy the same legal status as a child would. Many of our clients often ask us, “Who gets to keep the pet?”.

While many of us view our animals as children, unfortunately, the California courts do not share that view. When parties decide to dissolve their marriage, your pets, despite being living things, are viewed by the California Courts as property.

As the law sees it, your beloved pet is an asset with an assigned value, just as the court views your vehicle, home, and bank accounts. Therefore, in order to determine who will be awarded the property, the court must first determine the character of that property.

How Are Pets Characterized When Determining Property Division

Characterization is a bit of a misnomer to those who aren’t fluent in legalese. Characterization isn’t a description of whether Fido is a “good boy” or a “bad dog”, but rather a classification. Property in the dissolution of a marriage is characterized as either separate property, community property, or sometimes may have a mix of separate and community property. Your pet will be ‘characterized’ as either “separate property” or “community property”, like every other asset involved in your case.

What do those terms mean in plain English? Simply put, Community Property is any property acquired during the marriage, whereas Separate Property is any property acquired before the marriage, after the date of separation or during the marriage by gift, devise, or descent.

If the court characterizes the pet as the separate property of a person, that person will be awarded the pet. It doesn’t matter who took care of the pet or who loved it more or who the pet is most attached to -it boils down to who acquired the pet and when. If you bought the dog before the marriage, it’s your dog – plain and simple, but if you bought the dog while you were a married couple, that’s where things get complicated.

If it is determined that the pet is community property, the pet will be treated as a marital asset and will be valued and divided along with the remainder of all other the marital assets.

Determining The “Value” Of A Pet – What’s Fido Worth?

When determining the value of a pet, more often than not, the sentimental value given to the animal is usually higher than the actual dollar value of a pet. The problem with sentimental value is that it is not a measurable, tangible thing. What that means is that the court will not consider the sentimental value of the animal, but only the actual monetary value of the pet.

For example, let’s imagine you’re married, and you bought an AKC Certified Australian Shepherd Dog for $900. You have the dog a few years, you and your spouse love the dog, but grow apart and decide to end your marriage. Your dog happens to be the world’s best dog in your opinion, so to you, his sentimental value is $100,000 – but that’s not what he’s worth. For the sake of discussion, let’s say that someone could buy a similar AKC rated dog of the same age for $1200 right now online. – That value of what someone else would pay today on the open market is what the dog is worth in the eyes of the law. This is a simplified example, but conveys the point well enough.

The value of the pet will usually be determined by the amount the animal could be sold for on the open market, thus placing a nominal value to an animal (unless a particular factor gives the animal more value). For example, an animal may have more value if it is a purebred, a stud animal, service animal, a specialty trained animal, or an animal bred for racing.

How The Court Determines Who Gets To Keep Fido

Finally, the court will need to determine who will be awarded the pet – the all important question of who keeps Fido the dog or Fluffy the cat. As a result of the law viewing your pet as property, in our experience over thousands of cases,

the best way to ensure that you are awarded your beloved pet is to compromise with the other party.

Since in most cases, both parties still care deeply for their pets, you may need to give up other items you want in order to have other party agree to have the pet awarded to you. If neither party can bear to part with the pet, another option is for the parties to work out a “visitation” agreement that will ensure both parties are able to see the pet.

However, if the parties cannot come to an agreement then the court will make an order awarding the asset to one of the parties. The current laws surrounding dissolution of marriage and family pets may eventually change. Until the laws change, it’s best to try and work with the other party and compromise in order to arrive at an amicable arrangement ensuring you retain custody of your pet.

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