Fur babies and California divorce: Recent changes in state law

These developments are ground breaking from a national viewpoint.

It is no secret that many Americans - most certainly people in California - are crazy about their pets. After all, everyone knows what a fur baby is, and people regularly say pets are part of their families. With many couples not having children until later in life, dogs, cats and other pets seem to have played that role for a few years first. Even if not officially trained as a support animal, it is not uncommon to hear that a special dog or cat got someone through a tough time in life.

Despite these trends and even though we all know animals are living things who think and feel, most states classify pets as property to be divided in divorce, like inanimate objects. According to NBC News, judges have even ordered pets sold and the proceeds split.

Yet, an article in Animal Law reports that judges are beginning to consider the best interests of family members when making property distribution decisions involving pets.

How do you place a monetary value to add to a marital estate on a beloved dog who is exercise companion, emotional supporter, snuggle partner, entertainer and friend? Can you say because its worth on the market the same as the couch, pick which one you want, when you both love the animal? And what about the kids? If the pet is important in their lives, who owns it may even be a factor in custody and visitation decisions.

Not surprisingly, California is one of a very small handful of states (at least Illinois and Alaska have similar laws) to enact legislation bringing state law into modern times as far as treating pets like living things and not objects in domestic matters.

What does the new law provide?

The new California law took effect on Jan. 1, 2019. Family Code sec. 2605 says:

  • A party in a divorce or legal separation may ask the judge to enter an order requiring ownership of the pet is determined. The temporary order may not affect the final ownership decision.
  • A "pet animal" is a household pet that is part of the couple's community property.
  • "Care" for the pet includes at a minimum protection from harm or cruelty as well as provision of water, veterinary care, food and shelter that is "safe and protected."
  • A party may request that the judge assign either sole or joint ownership of a pet animal, considering its care needs. This is certainly a major step away from treating it like an object in divorce.

As of this writing on Oct. 26, 2019, Westlaw provides no cases interpreting the new law.

Spouses facing separation or divorce who are worried about pet ownership decisions can try to settle the matter in an agreement that can provide whatever terms or possession and ownership provisions they agree on for the good of the family members and the animal. The parties could achieve this through negotiation, mediation or collaboration, likely as part of a larger settlement.

If they cannot agree, the judge will look at the issues at the request of either party under the new law. A family law attorney can answer questions about the new statute.

The lawyers at Gavin & Dersch Law and Mediation with offices in Vista and Del Mar represent spouses and partners throughout San Diego County in matters involving not only pets, but also a wide variety of domestic and marital law issues.