We love our dogs in Florida. Think of the pampered menagerie on any day at the beachfront promenade. From purebred to rescue, they easily become the center of the universe in many households.
No surprise that the family pet – dogs, but also cats, horses and other beloved animal companions – can become the object of conflict in a separation or divorce. People form emotional attachments to their pets, especially when the spousal bonds are fraying. What does Florida law say about a fight in divorce court over the dog?
Your dog is in the same category as your – art collection?
State law in Florida and in most other states classify pets as personal property for purposes of asset division between divorcing spouses. This goes against the grain for most pet owners. Your dog is a living being who needs care and protection and gives back in love and companionship. Putting them in the same category with the china and car when dividing property feels wrong.
A handful of other states (New York, California, Alaska, Illinois and others) have enacted laws, or their courts have held, that pets have certain protections in divorce proceedings. For example, legislation may require that a judge consider a pet’s best interests or well being in deciding post-divorce arrangements for pets.
The reality is that the “American population treats their animals more like a child than an inanimate object.” Yet in Florida the courts have not gone as far as allowing, for example, an order of visitation for a pet. While it is an evolving concept, Professor David Favre at Michigan State University College of Law’s Animal Legal and Historical Center has suggested classifying pets as “living property,” meaning “physical, movable living objects – not human – that have an inherent self-interest in their continued well-being and existence.”
The main Florida case on this topic emphasized in 1995 that the court could not impose a system of custody and visitation on pets when supervision of human children in custody and visitation already put a tremendous strain on judicial resources. So, while family lawyers continue to push the boundaries of the law where their clients’ interests in keeping or sharing their pets after divorce, what approach can be taken given the current state of the law in Florida?
Marital agreements or smart advocacy
The logical answer is to negotiate a prenuptial, postmarital or marital settlement agreement (MSA) in which the spouses create a binding contract about future pet custody, visitation and expense sharing. This private agreement would largely be outside of the judicial decision-making process and law that binds judges.
Otherwise, a party could request a temporary court order (pendente lite) detailing responsibility for physical and financial fur-baby care during the pendency of the proceedings. But what about the final divorce order?
If the issue of pet ownership ends up before the judge, an attorney could make creative arguments based on current legal parameters. At least one recent Florida case has said that the court may consider “sentimental interest in property,” which may make relevant a party’s (or their kids’) emotional attachment to a pet. Other ways to show sentimental interest may be ownership of a dog pre-marriage or a spouse’s care and treatment of the pet during marriage.
An official emotional-support animal (ESA) normally goes to the spouse whom it serves. However, one Florida court noted that for this to apply, the animal must be an ESA under laws requiring the animal to support an actual disability of the owner. Regular emotional attachment of a pet owner is not enough.
