After losing a spouse or longtime partner, it's difficult to look past your grief. However, it's crucial to understand the important and timely decisions you must make regarding your finances and personal estate plan.
Not everybody loves dogs, but nearly everyone is aware that people who love dogs really love dogs, especially their dog(s). They love them near as much as a child, and let’s admit it, frequently like them more than their children. Unfortunately for dog lovers like myself, the State of Ohio does not treat dogs like children in a divorce proceeding.
Dogs are property.
That’s right. Dogs are property, what the common law would call a “chattel.” Ohio statutes even directly address the issue. “Any dog… shall be considered as personal property and have all the rights and privileges and be subject to like restraints as other livestock” (ORC §955.03). “Livestock.” I will give you a moment to settle down. Before you pick up your torches and pitchforks and start for Columbus, keep in mind those responsible for that language drafted the statute in 1953, however, it is still on the books and remains enforceable law. While there are a number of statutes and regulations regarding household pets, in the eyes of a domestic relations court, dogs and cats are much like a prized antiques or your favorite armchair. So how are they divided in a divorce proceeding?
Who gets Fido?
Most commonly, parties to a divorce simply agree which will own the pet after the conclusions of the court proceedings. This can either be reflected in a dissolution agreement or stipulated to prior to a court date. However, because dog owners frequently treasure their pets as children, parties sometimes fight for ownership as one would for custody of a child. As stated, dogs are personal property, but a court cannot simply divide up the dog King Solomon style, so what do courts look at when determining which party is awarded ownership?
Factors regarding this vary widely and are completely within the discretion of each judge and court. Common factors considered are which party purchased the animal, who paid for the food, toys, vet expenses, etc. of the animal, who spent the most time with the pet, and which party is better suited to take care of the animal after the other assets are disbursed. A court is unlikely to award a large dog to a party that plans to live in an apartment and rarely exercises when the other party runs four days a week and will maintain a residence with a backyard.
Some couples going through a divorce are more amicable when it comes to the pets, recognizing that their soon to be ex-spouse loves and cares for their animals as much as they do, and wish to share ownership of the animal. Parties sometimes seek to draft ownership schedules or rights of first refusal visitation when one party travels. It is wonderful to see clients behaving amicably towards one another, but Ohio courts are unlikely to enforce such quasi-custody arrangements should they be challenged down the road. Courts seek to avoid ownership arrangements that are likely to cause future court proceedings. Custody arrangements are necessarily complicated and open to future litigation because they involve children. The Ohio legislature and courts have notably expressed that they do not value the well-being of pets as highly as human juveniles (unthinkable I know), and will rarely enforce an ownership arrangement that is a de-facto custody agreement. However, including clauses within a separation agreement expressing the intention of the party who will own the dog (such as “X agrees that they intend to offer Y visitation of Mittens whenever appropriate, and intends Y to be the primary source of care and companionship of Mittens whenever X is out of town and chooses not to bring Mittens) can calm non-owning parties down and possibly prevent expensive litigation.
Ending a marriage can be a dirty business, and behind child custody and money, dog ownership may be the third most contentious part of divorce proceedings for those of us that love dogs more than most people. Still, like in every contentious issue relating to divorce that can go sourly for you, no matter what the world will not end. But unlike so many things that can go bad in a divorce, none have the partial remedy losing your dog has, adopting a new puppy. Just Google image “puppies” after finishing this article and you’ll know what I’m talking about.