California divorce: Pets are people, not property in divorce

Is Florida next?

In Florida, a beloved pet is firmly in the category of property that would be part of equitable division in a divorce. Arguably, a Florida court does not even have the power to order a custody or visitation arrangement for a pet, even if the spouses treat it as a family member.

At the other end of the spectrum is California, where a new law took effect on January 1 that gives a court in divorce or marital separation the discretion upon request of a party to order joint or sole ownership of a “pet animal,” defined as an animal “kept as a household pet” that is community property:

  • Care includes preventing “harm or cruelty” and providing “food, water, veterinary care, and safe and protected shelter.”
  • Community property is roughly like marital property in Florida. In other words, if one spouse does not separately own the pet (meaning the spouse owned the pet before marriage or received it as a gift or in an inheritance), it would be community property subject to part of the overall division of property.

A party to a California divorce or separation may also ask the court to order who will care for a pet during the pendency of the proceedings. Notably, the statute does not limit the definition of “pet” to only cats and dogs.

Presumably, if a court can declare that divorcing spouses will jointly own a pet, the judge should be able to decide issues of pet custody and visitation necessary to coordinate the care of the joint living asset.

According to NBC News, California joins only Illinois and Alaska with similar laws.

Florida law is not as pet friendly

By contrast, Florida has no statute like California’s and only one court opinion of note has dealt with the issue — and that was not a state Supreme Court case.

In the 1995 case of Bennett v. Bennett, the District Court of Appeal of Florida in the First District, which includes Tallahassee, reversed a trial court order that had granted visitation privileges to the wife with the family’s dog, Roddy. The First District said that the court below did not have authority to “order visitation with personal property,” which Roddy legally was.

The court reasoned that the courts are already “overwhelmed” by enforcing custody and visitation of people’s children and it would be too much to also supervise family pets.

Better option for Florida pet owners is to create agreements

For now, Floridians for whom pets are part of the family should consider using spousal agreements to control who will own or care for pets in case of divorce or separation. For example, the parties could decide issues of ownership, custody or visitation in prenuptial, postmarital or marital settlement agreements, given that judges do not presently have discretion to treat animals as anything other than property in divorce.

 

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