Pets in Divorce: Who Keeps the Dog?

Don’t you consider your pet to be part of your family? Every person who has loved a pet knows they are not just animals – they are a part of the family. We often treat our pets as our own children. There has been a huge increase in pet “custody” cases on court dockets. However, pets are not people and are instead deemed personal property under Virginia law.

Pets Are Considered Personal Property

Virginia Code Section 3.2-6585 states:

All dogs and cats shall be deemed personal property and may be the subject of larceny and malicious or unlawful trespass. Owners, as defined in § 3.2-6500, may maintain any action for the killing of any such animals, or injury thereto, or unlawful detention or use thereof as in the case of other personal property. The owner of any dog or cat that is injured or killed contrary to the provisions of this chapter by any person shall be entitled to recover the value thereof or the damage done thereto in an appropriate action at law from such person.

Since pets are considered personal property, textbook definition “custody” cannot be awarded, as is the case with your children. Under Virginia law, custody for pet purposes really means possession. Our pets are our possessions, just like other forms of personal property.

The Virginia Court of Appeals stated that, “pursuant to Code § 3.2-6585, one of the Comprehensive Animal Care statutes, all dogs … shall be deemed personal property.” This means that pets are subject to the same property division process as any other piece of personal property. Virginia Code § 20-107.3 sets forth a three-step process in dividing property in divorce cases – characterization, valuation, and distribution.

Characterization

First, the court must characterize the pet as either marital or separate property. Separate property is acquired before the marriage or during the marriage but completely separate of the other spouse. Marital property is any property acquired during the marriage. The court’s determination of whether the pet is marital or separate will come down to when the pet was acquired. If one party brought the pet into the marriage, the pet is considered separate. If the parties acquired the pet together during the marriage, the pet will likely be considered marital property and subject to division by the court.

Valuation

Pets cannot be divided in half. The court must award possession of the pet to one party, with the other party potentially receiving a financial award for the pet’s value. This is calculated and determined through the court’s process of valuation. Through valuation, the court must determine the fair market value of the pet. This, however, can be difficult, as it is challenging to put value on love and affection for animals.

Distribution

In the final step, the court then awards possession of the pet to the party in which the court finds it belongs to. The other party will likely receive a financial distribution from the person who possesses the cat.

Other Ways to Provide for Your Pet: Pet Trusts:

Virginia Code § 64.2-726 allows for the creation of pet trusts. A pet trust requires:
A named caregiver
Money set aside specifically for your pet
An outlined care plan, and
A formalized agreement

Choosing a Caregiver for Pet Trust

It is important to choose someone as the caregiver for your Virginia pet trust who is willing, capable, and responsible enough to provide for your pet’s long term care. It is also a good idea to name a contingent caregiver in the event the first caregiver is either unable or unwilling to serve as caregiver.

Money

You can set aside a certain amount of money for your pet in the creation of your pet trust. Attorney Van Smith can help you calculate the expected amount needed for the care of your pet, based on a variety of factors.

Outlined Care Plan

The attorneys at Smith Strong can also help you formalize an agreement that outlines a specific care plan, including all of your wants and needs for the pet’s care. This will ensure that your pet is provided for after your death.


With more and more pet “custody” cases getting onto the court’s docket, will Virginia and other states changes their laws regarding pet custody? Will there eventually be visitation allowed between pet owners who divorce? These questions remain unanswered, but developments in the law (and time) will tell. Call the attorneys at Smith Strong, PLC today to develop a comprehensive case plan in your divorce case to ensure your pet is taken care of.

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg