• Presley Hager

WHO GETS THE DOG?

A 2019 Pew Research Center study found that a larger share of adults are cohabitating rather than getting married. Whether this means that marriage is getting pushed further into the relationship or being sidelined altogether is a matter for another study, but it does present a thorny issue: couples are buying furniture for the home, dishes, silverware, dogs, and cats all without the legal benefits of marriage.

What do I mean? Well, traditionally, two people would get married, have 2.5 kids, and get a dog (or two, or three…). If they divorced, a court would step in and determine division of assets and custody agreements. Even in cohabitation/dating relationships where the couple shares a child, a court will still step in to help align custody agreements. (Even if you agree on custody, you still need to get it in writing and ordered by a Court!) The greater issue arises when cohabitating couples break up with only dogs and/or cats in tow. When this happens, you do not have a domestic relations court determining custody or distribution of assets, yet you’re faced with the same emotional connection. So, the question remains: who gets the dog?

In Arkansas, there are two different types of property: real property and personal property. Essentially, personal property is anything that can be moved (except land) and real property is anything that is affixed to real estate (can’t be moved). For example: a tree growing on a piece of property is real property, but once you severe it (cut it down) it becomes personal property.

Dogs are considered personal property in Arkansas. In a divorce, marital property (property acquired during the marriage) is divided between the parties, usually with the help of the courts. In cohabitation relationships, you are left to your own devises to divide the property acquired during the relationship as courts do not get involved in non-marital disunions. Although dogs are property, deciding who gets the dog can still be an emotional process. If you can get along with your soon-to-be or newly-minted ex, I would advise sitting down to draft an agreement on the distribution of your property. I would also advise taking that agreement to an attorney to have them draft up a contract that protects both of you. This agreement needs to address who will be the primary caregiver is, if/when there will be visitation, how vet/food expenses will be paid, etc. If you cannot get along, you can still give me a call!

Even without agreement, you can attempt to mediate the matter of property distribution, or you may have to get a court involved. Generally, to get a court involved in a non-marital property dispute, you have to file an action for replevin claiming that your ex took the dog when the dog actually belonged to you. Replevin can take two paths: one will gain immediate possession of the property, and one will seek a final ruling by a court as to the ownership of the property. When you seek immediate possession, you must post a bond of double the value of the property in question, and you will get the dog back without waiting for the court. On the other hand, if you cannot get immediate possession, then once the court grants replevin, the court will send a sheriff to collect the dog and return it to you.

A court will also get involved when there is a child at play. Children often develop strong emotional connections to family pets and in consideration of that, a court will often determine who gets the dog in conjunction with child-custody arrangements. In Texas, one court decided that the family dog would stay with the child and follow the child’s custody schedule. If the child was with mom on Monday and Tuesday, then the dog was with mom on Monday and Tuesday. The parents each bore responsibility for the pet when the pet was in their home.

When it comes to a marital union, things are a little different (and perhaps a bit cleaner). If the dog is bought during a marriage, then the dog becomes marital property. Similar to other marital property, you can decide with your spouse who will keep the dog. If you cannot agree, then the court will decide for you. The court might decide to give the dog to one party, or rule that the dog is to be sold and the profits split. Or, the court could rule that the value of the dog must be equitably distributed based on each party’s proportion of the assets, and then pay a certain amount of money to the other party. For example, in a recent case in Las Vegas the parties determined the value of the dog by subpoenaing vetinary records, evaluating the breed, and estimated costs for the dog. In the end, one party got the dog, and the other party got $500.

In Dickson v. Dickson, a 1994 court case out of Garland County, Arkansas, the court ordered the husband to pay “petimony” of $150 per month for the dog’s care and maintenance. This was later modified due to a material change of circumstances. Other states such as Alaska, Illinois, and California, have laws regarding pet custody; Arkansas, however, does not. Until the state legislature acts, we must continue to act under property and contract law.

The take away, as many Arkansans delay marriage and children, is

  • If you are in a non-marital relationship and decide to get a dog, determine beforehand who’s dog it is or how you will handle the “custody” of the dog if the relationship comes to an end. A petnup, perhaps? We can help with that.

  • If you are moving towards ending a non-marital relationship and there is concern over who gets the dog, sit down with a lawyer to draft an agreement for you and your soon-to-be ex on distribution of property.

We have focused this blog post on dogs and non-martial relationships with cohabitation because of the rise in pet ownership as well as the delay in marriage among many young people. The issues raised in this post, however, extend to more than just the dog. That king-size bed you bought, that might become just as much of an issue. Navigating break-ups in today’s society is just as emotional and messy as divorce and we are here to help. Whether you are going through a divorce, or ending a long-term non-marital relationship, call me at 501-650-8468 or email familylaw@davisfirmpllc.com.

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Presley Hager practices Family Law at the Davis Firm in Little Rock, Arkansas. Presley has a Juris Doctor from William H Bowen School of Law; a Masters of Public Administration from UA-Little Rock; and a bachelors degree in Social Work from the University of Little Rock. She is a licensed social worker and dependency-neglect certified. In addition to practicing law, Presley works to train other attorneys and judges to be trauma-informed in handling cases, clients, and witnesses.

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