Who Keeps the Dog in a Virginia Divorce?

Jordan A. Fanney

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Corgi Dog and Who Gets the Dog in a Virginia Divorce


Custody and visitation arrangements for minor children are decided based on what is in their best interests.1  Although many would consider their dogs to be a part of their family, Virginia law treats them differently.  In Virginia, pets are considered personal property.2 When spouses cannot agree on who gets the family pet after divorce, Virginia’s equitable distribution statute is applied to determine who keeps the dog.3 The statute takes the following three-step approach to property division:

  1. Characterize the property as separate, marital or a mixture of both (hybrid) and determine legal title to the property.4
  2. Value the property.5
  3. Distribute the property after applying the equitable distribution factors.6 Courts can only order the sale of jointly titled property.7

The three-step approach applied to a dog is as follows:

A. If the Dog is Separate Property it Belongs to the Spouse Claiming the Separate Interest

Separate property includes property acquired by one spouse before the marriage.8  It also includes property given as a gift or inheritance to one spouse during the marriage by a third party.9   In general, marital property is all property acquired by a spouse during the marriage that is not separate property.10 There is a presumption that all property that is titled in the names of both parties is marital property, but this presumption can be overcome in certain circumstances.11  If the dog is considered 100% separate property, the spouse having the separate property right gets to keep the dog free of any claim from the other spouse. The following are examples of situations where dogs would be classified as separate property:

  • Sally purchases her golden retriever before she meets her husband Ed. All of the legal paperwork for the dog is in Sally’s sole name.
  • William inherits his Welsh corgi during the marriage from his mother after she dies. His mother’s will only names William as the beneficiary. William is in charge of taking care of the dog and solely attends to its medical needs.
  • Ashley receives her German shepherd during the marriage as a gift from her cousin. Ashley’s cousin does not like Ashley’s husband and makes clear to her that the dog is a gift only to her. Ashley’s husband has little to do with the dog.

Is it possible for a spouse to gain marital rights to a dog that is initially considered the other spouse’s separate property? In theory, yes. If the non-owning spouse causes a substantial increase in the value of the dog during the marriage due to his or her own personal efforts, such increase is considered marital property.12 Typically dogs do not increase in value, but it is possible. If the non-owning spouse prepares the dog to become a famous and valuable show dog, he could argue that the dog is part marital (hybrid) property and make a claim for the dog.

B. If the Dog is Titled in One Spouse’s Name, that Spouse keeps the Dog Subject to the Other Spouse’s Marital Rights

When a car is purchased in Virginia, the Department of Motor Vehicles issues a certificate of title that certifies legal ownership of the car.  Unlike a car, Virginia agencies do not issue a title that certifies ownership of a pet.  Nonetheless, parties can provide other forms of evidence to show sole legal ownership. If only one spouse is listed on all of the legal paperwork pertaining to the dog, that spouse could argue for a sole legal title designation.13 Even if the judge fails to recognize the concept of legal title to a dog, the facts relevant to legal ownership may still be relevant to who ultimately should get to keep the dog. Legal paperwork evidencing sole ownership may include:

  1. An adoption contract that lists one person as the owner and makes them legally responsible for the care of the animal.
  2. A license in the name of one spouse.  Certain Virginia cities, such as Norfolk, Virginia, make it illegal to own a dog or cat without a license.  The license lists the owner of the pet.  A false statement regarding ownership of the dog or cat on the license application is a class 1 misdemeanor, which arguably makes the statement of ownership on the license reliable.  The owner on the license is legally responsible for payment of an annual license tax.  
  3. Medical and vaccination records in the name of one spouse.   
  4. American Kennel Club registration certificate in the name of one spouse. 14
  5. Microchip records showing registration in one spouse’s name.

If a court determines that the legal title to the pet is solely in the name of one spouse, it is required to award the pet to the spouse holding legal title.  The other spouse may still have marital rights to the animal, and the court, after valuing the animal and hearing evidence related to the statutory equitable distribution factors, may make an award of money representing the marital share.  The spouse awarded the pet then has to pay money to the other spouse to satisfy his or her marital share of the pet. 

Step Two: Value the Dog

The value of personal property such as a dog is a subjective concept “that looks to the worth of the property to the parties.”15 “The parties must rely on accepted methods of valuation, but the particular method of valuing and the precise application of that method” to the facts of the case will depend on the married couple’s specific circumstances.16 Determining fair market value is one accepted method of valuing property. “Fair market value is the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing.”17 In the case of an expensive dog breed, an expert can testify about how much a seller would pay for the dog. For instance, a breeder could testify about how much people have paid for similar dogs in the recent past. The purchase price of the dog is also relevant to the determination of value.18

Step Three: Distribute the Dog After Applying the Equitable Distribution Factors

Virginia Code § 20-107.3(E) lists eleven factors that courts are required to evaluate when determining the distribution of marital property such as a dog. The most relevant factor for pets arguably is factor 2 – “the contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties.” Additionally, courts are given broad license under factor 11 to weigh any other factors that are relevant to a fair and equitable award.

After the court applies the factors to the specific circumstances of the case, it determines who gets to keep the dog or whether the dog will be sold. Most courts hopefully would not force a sale of a pet except as a last resort. Further, sale is not an option if the court finds that one party is the sole legal owner of the pet.

The following table analyzes which spouse has a stronger case under each set of example facts. No one fact is determinative. The court will look at the overall circumstances and all of the factors in Virginia Code 20-107.3 in making a decision.

FactsFacts Weigh in Favor Of
Wife purchased the dog with her own employment income and picked up the dog from the seller on her own.Wife
Husband primarily cares for the dog. He walks the dog, feeds him, grooms him, takes him to the vet, and plays fetch with him.Husband
Husband and wife go through a breakup and separate residences. The dog stays at the marital home with the wife pending the divorce.19Wife
Wife has mental health issues and her therapist recommends that she keep the dog to help with her mental health.Wife
Husband exercises with the dog, goes hiking with the dog, and generally has a closer bond to the dog.20Husband
Husband screams and hits the dog. The dog appears fearful when around the husband.Wife
The dog is active and needs to be outside frequently. Husband has a larger house and backyard that gives more space for the dog. Husband
Wife travels frequently for work and is gone for long periods of time without seeing the dog. If wife were to keep the dog, she would have to hire someone to walk and feed the dog while she was gone. Husband

Final Thoughts

The trend in the United States is toward treating pets more like family instead of personal property. A number of states, including Alaska, California, Illinois, Maine, New Hampshire, and Rhode Island have enacted pet custody laws that permit courts to award sole or joint custody of pets based on the welfare or care of the animal.21 Unfortunately, Virginia has not yet caught on to this trend.

Until new legislation is passed, Virginia will continue to treat pets as an asset to be categorized, valued and divided just like any other piece of property. Under this approach, courts are unlikely to force parties to be co-owners of their pets after divorce.22 If divorcing couples wish to have joint custody of their dog, they cannot depend on the court to fashion a custody schedule. However, parties have the ability to enter into a separation agreement that provides for joint custody. A Virginia circuit court can incorporate the agreement into the final divorce order under Virginia Code § 20-109.1. For couples that get along reasonably well and also share custody of their children, this may be a viable option.

If you need someone in your corner to fight for your right to your dog or cat, please give me a call at 757-499-1841 or send me a message through my online contact form. I have experience litigating pet issues in divorce cases and can be a strong advocate for you.

ABOUT THE AUTHOR

The best divorce attorney in Virginia Beach is Jordan A. Fanney according to some.

Jordan A. Fanney, Esq. is a Virginia Beach divorce and family law attorney who works for Poole Brooke Plumlee PC.
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Endnotes

  1. Va. Code § 20-124.3. ↩︎
  2. See Whitmore v. Whitmore, Record No. 1644-10-4 (Va. Ct. App. Feb. 22, 2011), stating that the trial court was not wrong to decline a schedule similar to that ordered in child custody cases. The Court in Whitmore cited Virginia Code § 3.2-6585, which states that “[a]ll dogs and cats shall be deemed personal property.” “Although Code § 3.2-6585 is not part of the domestic relations statutes, ‘statutes which relate to the same subject matter should be read, construed and applied together so that the legislature’s intention can be gathered from the whole of the enactments.'” Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994) (quotingBlack’s Law Dictionary 791 (6th ed. 1990) (defining in pari materia rule of statutory construction)). ↩︎
  3. Va. Code § 20-107.3. ↩︎
  4. Va. Code § 20-107.3(A). ↩︎
  5. Id. ↩︎
  6. Va. Code § 20-107.3(E). ↩︎
  7. Va. Code § 20-107.3(C). ↩︎
  8. Va. Code § 20-107(A)(1). ↩︎
  9. Id. ↩︎
  10. Va. Code § 20-107(A)(2). ↩︎
  11. Id. ↩︎
  12. Va. Code 20-107.3(A)(3)(a). ↩︎
  13. Virginia Code § 3.2-6500 potentially undercuts the argument for sole legal title to a pet. It defines a pet owner as “any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.” ↩︎
  14. See Whitmore v. Whitmore, Record No. 1644-10-4 (2011), mentioning this as a pertinent fact. In Whitmore, both parties were on the registration. ↩︎
  15. Howell v. Howell, 31 Va. App. 332, 523 S.E.2d 514 (2000). ↩︎
  16. Id. ↩︎
  17. Lake Monticello Service Co. v. Board of Supervisors, 237 Va. 434, 438 (1989). ↩︎
  18. See Whitmore v. Whitmore, Record No. 1644-10-4 (2011) and Bowles v. Bowles, CL07-879, Record No. CL07-879 (Va. Ct. App. Dec. 21, 2010). ↩︎
  19. See Whitmore v. Whitmore, Record No. 1644-10-4, 2 (Va. Ct. App. Feb. 22, 2011). ↩︎
  20. Conahan-Baltzelle v. Baltzelle, Record No. 0830-04-3, (Va. Ct. App. Sep. 7, 2004). ↩︎
  21. Alaska Statutes § 25.24.160(A)(5); California Code Family Code – FAM §2605; Illinois Compiled Statutes 750 ILCS 5/503; Maine Sec. 1. 19-A MRSA §953, sub-§10; New Hampshire RSA § 458:16-a) and Rhode Island General Laws 15-5-30. ↩︎
  22. Whitmore v. Whitmore, Record No. 1644-10-4, 3 (Va. Ct. App. Feb. 22, 2011) (“The trial court reasoned that it is “ill-advised” to have visitation or shared custody of an asset.”). But note that just because the law does not allow for joint custody based on the welfare of the pet does not mean a court will not entertain the idea on a temporary basis pending the divorce. I personally had a Portsmouth Circuit Court judge order alternating week on week off “possession” of a dog between husband and wife as part of a pendente lite order. Temporary possession of a companion animal is also a viable option if requested as part of a petition for protective order. See Va. Code § 16.1-253.1 (A)(8) (preliminary protective order) and § 16.1-279.1 (A)(9) (final protective order). The Whitmore and Conahan-Baltzelle cases cited above are unpublished Virginia Court of Appeals cases. They are not binding on trial courts; however, “[u]npublished opinions of [the Virginia Court of Appeals], while having no precedential value, are nevertheless persuasive authority.” Samartino v. Fairfax Cty. Fire and Rescue, 64 Va. App. 499, 508 n.2, 769 S.E.2d 692 (2015). ↩︎

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