There is no California case on the subject of dividing family pets in divorce. However, the law is clear that Pets are personal property. Civil Code Section 655. Family Code Section 2550 provides that that, absent a written agreement of the parties, the Court shall equally divide the community estate of the parties. So how does the Court decide who gets the beloved family pet(s) when the parties do not agree?
There are two ways in which a court can handle the division of pets. The first is to inquire as to whether the pet was a gift to one spouse during the marriage, or acquired by a spouse prior to marriage. If so, then the pet would be that spouse’s separate property pursuant to Family Code Section 770.
If the pet was purchased during the marriage and was not a gift to one spouse, then the pet would be community property under Family Code Section 760. In making a decision as to which spouse should be awarded the pet, the Court should consider the psychological attachment which each party has to the pet. Marriage of Fink (1979). In Fink the court awarded husband certain personal property which were very personal to him, including a painting to which he has a special attachment. The Court awarded wife the family residence where she had resided for many years and to which she was emotionally attached, the furnishings and a painting for which she had a special fondness.
The Legislature enacted Family Code Section 2605 to allow the Court to make orders for the care of pet animals pending division of property.
Order to care for animal pending final determination; assignment of sole or joint ownership
(a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.
(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.
(c) For purposes of this section, the following definitions shall apply:
(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.
(2) “Pet animal” means any animal that is community property and kept as a household pet.
Value of the Pet: The Court must use its discretion in making a determination as to the value of the pet. In Mears v. Mears (1960) the Court awarded two poodles to wife and valued the pets at the purchase price – $250. In other civil cases, such as tort actions, courts have recognized that fair market value does not compensate the owner and have permitted recoveries for injuries to pets. Martinez v. Robledo (2012). The court does not have to accept a buy/sell offer from one party as this could lead to abuse in the case where one party has a strong attachment to the animal.
