Pets may be family in your household, but Pennsylvania law says otherwise
You have a pet — your beloved dog. You think of your dog as a member of the family. You are getting divorced. Who gets the dog? Or who gets any pet for that matter?
It is usually an emotionally charged period as a marriage reaches its final days. Most divorces deal with children and their best interests, and marital property and how it is characterized and fairly apportioned between spouses. Issues concerning children fall under custody and support. Issues concerning marital property fall under equitable distribution. Pennsylvania is an equitable-distribution jurisdiction, meaning that the marital estate is parceled out to each spouse in a manner that is deemed fair. As beloved as your dog is to you and considered a member of your family, pets in Pennsylvania fall under equitable distribution — where the parties attempt to figure out who gets which marital property, such as real estate, pension rights and chattel. “Chattel” is just a fancy term for “stuff.”
Your dog, legally speaking, is chattel — a possession like home furnishings, jewelry or a car. People have a hard time equating the family dog with a piece of furniture. A pet is a living, breathing and loving creature that brings great joy and has feelings. The question is, how can your dog, this loving family member, be treated fairly and end up living with the best party? Many assets can be divided, but it can take the wisdom of Solomon to decide the fate of a pet in a divorce battle.
Some advance planning might help. If you acquire a dog while you are single, get a receipt of purchase or letter from a gifting party and keep it in a secure place. If you purchase a dog during the marriage, using your own separate money, get a receipt stating the dog was sold solely to you. If you and your spouse jointly purchase a dog using marital funds, then you may have a problem. You may be the real dog lover and the other party may not care and may just surrender the dog to you, but do not count on this. Who takes care of the dog, takes the dog to the veterinarian, pays the bills, and generally watches out for the dog’s best interest and welfare? To whom does the dog seem most attached? In other words, who does the dog love more, if that can be determined? Do not assume the court will decide in your favor. The court may care only that the dog is with one party and that could very well be the end of the story.
There is no simple answer to “Who gets the dog?” — or any pet in a divorce action. In a divorce, one spouse might be vindictive, claiming to want the dog but not really caring about it, while trying to hurt the pet-loving spouse. Think of the divorcing couple who both love the dog, and one party wants to move across the country with the dog. If you are married and you do not have a prenuptial agreement, maybe a postnuptial agreement is something to consider, setting out how a pet is treated in life, as well as in death. This agreement might define your dog as your separate personal property.
The life of a dog is relatively short. A pet deserves to be given to the party who can provide love, but who can also afford to keep the dog in good health and provide a stable and safe environment. What one hopes for compared with what decision the court makes can be very disappointing.
Note of caution: In Pennsylvania, any agreement denoting custody relative to a pet will probably not be honored because at the end of the day, the pet in question is “property” and will not be treated like a child-custody matter.
In the 2002 case Desanctis v. Pritchard, the Superior Court of Pennsylvania stated, “Appellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.” This is harsh, but custody law cannot apply to property. Hopefully with some creative lawyering or legislative lobbying, this might some day change.
Family pets and the laws that govern them in divorce are slowly changing. Recently, California passed a law that will bring family pets more into the custody side of divorce.
Hopefully, pet custody-type solutions might become more the norm rather than the exception. This is a time rich in creative ideas and concerns about animal welfare. The American Bar Association in 2017 published a 600-plus page book entitled, “Pet Law and Custody” with the subtitle, “Establishing a Worthy and Equitable Jurisprudence for the Evolving Family.”
Let your Pennsylvania senator or representative know that you feel strongly about the treatment of pets in divorce.
We live in a time when animal rights and the humane treatment of animals is now part of the public policy debate and social conscience. If you have pets and you are planning to divorce, or are in the middle of a divorce, it is best to consult with an experienced family-law attorney because there may be more to equitable distribution than you realize.
Mark-Allen Taylor, Esq. is a Center City attorney specializing in family law (www.mat-law.com). Email him at [email protected] or call 215-854-4008.