Thursday, 08 December 2011 12:11


Written by  Ken Sandoe, Attorney at Law
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Disclaimer – This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

T he rise in the number of divorces is alarming. It is also interesting to note the number of animals, including pets, which are owned or cared for by families. There is nearly one pet for every five Americans. So what happens to your favorite horse–or the herd, for that matter–in a divorce?

The starting point is what is known as the traditional view among the majority of states. This view classifies animals as personal property. Thus, an animal is viewed no differently than a piece of furniture or other personal property in a divorce proceeding.

Most states have laws which define animals as property. For example, in Pennsylvania, Title III, of the Agricultural Law, defines domestic animal as:

“Any equine animal or bovine animal, sheep, goat, pig, poultry, bird, fowl, confined hares, rabbits and mink, or any wild or semi-wild animal maintained in captivity.” (3 PA. CONS. STAT. §459-102)

If the divorced parties cannot agree on the disposition of the animals, how does a Court decide which spouse should be awarded ownership? For example, if the horse was acquired prior to the parties’ marriage can that horse be considered non-marital property not subject to claim by the other spouse? What is the horse’s value? Should the expense to keep the animal be considered by a judge in determining who should have ownership? Can the animal be shared between the parties such as many custody agreements concerning children?

The Pennsylvania Superior Court recently addressed some of these issues in the case of DeSanctis v. Pritchard, 802 A.2d 230 (PA Super. 2002), Appeal Denied by 2003 Pa. LEXIS 313 (PA March 12, 2003). In this case, the parties reached an agreement which would share their dog, Barney.

However, after the divorce agreement was signed by the parties, one of the spouses backed out and refused to share Barney with the other spouse. That spouse sued to enforce the sharing agreement and the Superior Court was left with the issue of enforcing the agreement. The Superior Court held that pet owners do have a special status with their animals but the Court ruled, relying upon the traditional view, that the sharing agreement was “analogous in law, to a visitation schedule for a table or lamp.” Thus, the Court refused to enforce the agreement between the parties.

It is true that some states have recognized the special relationship with pets, animals and their handlers and have gone so far as to afford special status to certain family members concerning the animal in question. For example, in Buechner v. Hamel, 886 S.W.2d, 368 (Texas Appellate Court, 1994), the Court stated as follows:

“Courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members. Indeed, for many people, pets are the only family members they have.”

In another case, Hodo v. Hodo, 2004, VA. APP. LEXIS 39 (2004), a Virginia Appellate Court awarded custody of a dog, Grunt, to the wife since the Court considered Grunt a family pet and the parties’ child was living with the mother. The father argued strenuously that he should be awarded the dog because the dog was his separate property. The Court rejected his argument.

In Green v. Schall, 2004 OHIO 1653; 2004 OHIO APP. LEXIS (2004), the Judge awarded the parties’ dog to the husband since the husband had trained the dog and been primarily responsible for his care and expenses.

Another line of thought looks to the animal’s “best interest” in determining who should be awarded possession. In Raymond v. Lachmann, 264 A.2d 340 (NY APP. DIV. 1990), the Court awarded the parties’ cat to the wife. The Court noted that strong emotions were developed between the wife and the animal and that the animal should remain with the wife where it had “lived, prospered, loved and been loved for the past four years.”

Florida, on the other hand, treats pets in divorce as tangible personal property, the traditional view, and refuses to enforce any analysis concerning the pet’s best interest or sharing of a pet. The Court stated in Bennett v. Bennett, 655 SO.2d 109 (FL DIST. CT. APP. 1995):
“Courts are overwhelmed with the supervision of custody, visitation and support matters related to the protection of children … it would not undertake the same responsibility with animals.”

There has even been an interest in protecting pets from abuse by one of the spouses. There is a recent article in the New York Times, National Report, April 1, 2006, titled “Battered Wives’ Pets Suffer Abuse Too.” The article refers to a case in Wisconsin where a spouse killed the other spouse’s pets to punish her. (State v. Knitz, No. 99 C.F. 00 0152 (WI CIR. CT. Washington County). In the state of Maine, a bill was recently signed by the Governor that allows animals to be included in protection orders in domestic violence cases.

In review, it is clear that case law concerning animals in divorce cases is evolving through the states. Many states continue to view animals as personal property while others view them as something special and consider factors similar to child custody cases. What we know as of this time, if the parties cannot agree on ownership or disposition of the animal, they should be fully prepared to present evidence concerning not only the appraised value of the animal and expense to keep the animal, but also the parties’ attachment to the animal including personal training and care. It appears all of these factors are fair game for a judge to consider in making an award.   

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

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