In some states – notably not Colorado – dogs are treated by the courts as “companion” animals, and the rules are really different than has historically been the case. A companion animal is just what the name implies, an animal whose primary function is to serve as a companion (and helpmate) to a person or more than one person. Companion animals are sometimes likened to children, in terms of the way the law deals with them in a divorce situation. The Court may consider to whom the animal is a companion, what the bonds of affection are, who has spent time with the animal, etc. In some cases, a dog may be a service animal who is of great assistance to a disabled individual.
Many people (this writer included) are extremely attached to their “four-legged children.” It is not an exaggeration to note that some divorcing parties state that “custody” of their dog is the single most important issue in their divorce. It also is worth noting that some divorcing parties who do not end up with physical possession of the family dog express great sadness (depression) because of the loss of their pets.
In Colorado, however, dogs are still treated in most courtrooms as personal property. The Court may look at whether one spouse owned the dog prior to the marriage (in which case the animal would be separate property of the spouse who owned it prior to the marriage) and whether the dog or other animal was a gift from someone (including the other spouse) to just one of the spouses (in which case the spouse who received the gift would likely be awarded it as part of the divorce). It is the same analysis as applies to a frying pan or an automobile, or even to real estate.
The approach of treating dogs as property may be changing. There have been stories in the newspapers about Colorado Courts, municipal courts so far, who have applied a “companion animal” analysis in deciding who owns the animal, dogs so far. I haven’t heard of any cases involving animals other than canines, although it is reasonable to expect that other animals (cats and horses, to name two) would qualify as “companions.”
There frequently are cases in which something akin to “visitation” takes place with pet dogs – but generally it is because the parties agree to a schedule for shared possession of a treasured pet. Courts understandably do not like to get in the middle of disputes about the pet pooch.
Sometimes, the issue gets resolved according to the old “possession is nine-tenths of the law” rule, in which the party who has the animal at the time the Court hears the dispute ends up with the superior claim to keep the pet.
Some of the more interesting dog cases in which this writer has been involved or which I’ve heard about over the years include:
--The parties, two mental health professionals, both wanted the two dogs and would not separate them because the two animals were “bonded to each other.” The husband ended up with both pets by agreement of both spouses.
--The wife, knowing of her husband’s love of their dog, had the animal put down while the husband was out of town, just to spite him. I find this story hard to think about and can’t imagine being so cruel.
--The parties agreed to “visitation” in which the wife got to keep the dogs and the husband “visited” frequently. After they separated from each other, the parties lived more than two hundred miles from each other. They met halfway to exchange the animals.
--The parties’ dog went back and forth on the same schedule as their child, since the animal was extremely attached to the child.
--The dog was purchased as a hunting dog and ended up spending most of its time with the wife who agreed that, when the soon-to-be ex-husband went hunting, he could take the dog.
By Doris Truhlar