In honor of National Guide Dog Month, we wanted to address a potential area of stress that clients are often reluctant to discuss. They worry that their ex will get “custody” of their dog and are not sure what to do about it.
Your dog, cat, or other four-legged friend is a member of your family. We understand. But the law sees the situation differently, so here is what you need to know to “divorce-proof” your dog.
Pets are Property Under the Law
The law treats your dog like your dishes or a divan. A court will not decide who is entitled to custody. Instead, your pet is considered property, subject to division in divorce.
However, it is important to understand that only marital property is subject to the usual equal/equitable division when you get divorced in Ohio. Property that is legally considered your separate property belongs to you personally and is not ordinarily subject to division with your spouse and you can keep it in a divorce. So, if your dog can be considered your separate property, then you don’t need to worry about losing your canine companion.
Proving that Your Dog is Yours
Under Ohio law, property that a couple acquired during their marriage is generally considered marital property. Assets owned before the marriage start as separate property, and this would include your four-legged friend.
Assets that are inherited or given as a gift are also usually one spouse’s separate property. If the separate property increases in value during the marriage, the increase in value itself can be marital property but only when the increase is due to the efforts of one or both spouses during the marriage. This is referred to as “active” appreciation. “Passive” appreciation or increase in value due to market forces is typically separate property.
Your dog probably has not increased in monetary value during the marriage. Most likely, then, if you can locate records or other evidence to prove you owned the dog before the marriage or received it as a gift during your marriage, you have a good chance of keeping your best pal as your separate property. You can always negotiate to share time with your dog as part of a settlement, but it is at the Judge’s discretion to approve a “custody” agreement for your dog or cat.
Prevent Problems in Advance
The best way to ensure that you can keep your dog in a divorce is to execute a prenuptial agreement specifying that the dog will remain your property regardless of what happens in the future. Couples who are living together but not married can have a cohabitation agreement prepared to protect their property—including pets.
Ohio law currently does not recognize postnuptial agreements, but that could soon change. Married couples would then be able to work with an attorney to prepare an agreement that protects their rights and expectations during the marriage and afterward, should they divorce, and this could include ownership of the family dog or cat.
Work with an Experienced Attorney to Help Keep Your Dog in Divorce
If your dog is a guide dog, a judge will most likely keep that dog with the human that the dog is trained to serve. But for all other pets, a judge’s attitude and feelings may have a big impact on a decision about pet ownership. Make sure your attorney understands how to present the most persuasive arguments in your favor.
Whether you are negotiating an agreement or settlement or preparing to make your case in court, the team at Weis Law Group understands how to protect your rights to your pet. To discuss how we could help you keep your dog in divorce, contact us now for a confidential consultation.