California, Illinois, and Alaska now permit divorce courts to consider the “best interest of the pet” (limited to dogs, cats, and a few other animals) when determining which spouse gets the pet after the divorce is finalized. The other 47 states apply a bright-line test of awarding the pet to the spouse that paid for it or adopted it. And in cases where the purchase money comes from, say, a joint checking account, the pet goes to the individual that can show he or she initiated the purchase of the dog, cat, or other pet.
The advantage of bright-line ownership rules is that liability for dog bites is clear and, if there is a divorce, taxpayers aren’t paying for a judge to determine who gets the Old English Sheepdog.
California, Illinois, and Alaska have adopted “best interest” rules that recognize how pets are unique forms of personal property. As one recent Court put it: “Dogs are more than just animate. People form strong emotional relationships with their dogs, and it cannot be seriously argued otherwise. Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them. Accordingly, “who gets the dog?” can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on “who gets the dog”.
While these laws seem modern and in-touch on paper, I argue that there is a justice and logistical problem with this emerging modern approach of taking into account a dog’s best interest, as though it were a child subject to a divorce proceeding.
First, someone who buys a dog, gets married, and then shares the feeding, vet/caretaking, and walking arrangements with a spouse could be unwittingly surrendering his interest in the pet without knowing it. The United States has a strong tradition of only changing ownership based on a “deliberate act of transfer” because it would be fundamentally unfair to pay for something and surrender it without taking any knowing act to voluntarily relinquish the right.
It violates basic Kantian fairness to say that you could buy a dog, think it is yours, form an emotional bond with it, because your spouse walks it a bit more and takes it to the vet more than you, the spouse therefore acquired ownership of the dog without any notice to you at some imaginary moment when the tilt occurs that the best interest of the dog is suddenly served by the non-owning spouse.
There is rarely any question regarding who bought the dog, and so, it takes a few moments to determine who owns the pet after divorce. The spouse that does not pay for it has notice from the start that, if a divorce were to occur, the dogs are awarded to the spouse that paid for it because that is what the rule is, has been, and can be easily looked up online by browsing your state’s statutory laws.
Also, we do live in a world where costs exist. Now, if we introduce something as amorphous as best interest of the dog, this means that the divorce attorney gets to bill you $500 for researching the issue, $500 for gathering the specific facts about the best interest of the dog, $2000 for drawing up the motion, $500 for attending a hearing, $200 for drawing up a proposed order, and maybe another $1000 for both reading the opposing party’s motion and drafting a rebuttal motion. It could easily cost $3500-$5000, or somewhere thereabouts, for making a determination at an evidentiary hearing about what constitutes the dog’s best interest.
Plus, there is the question of defining best interest. Is it the owner that takes the dog to the vet in the most timely manner? The one that walks the dog the most? The one that feeds it timely? The one the dog likes best? Do you hire an animal expert to come in and testify that, although the other spouse provided more care-taking responsibilities for the dog, the dog in fact likes the other owner more? If I were a dog, I’d like the spouse that didn’t take me to the vet to get neutered more than the one that did. If there are fair questions about the best interest of the dog, we could be looking at a $10,000 expense.
My view is that state laws should channel their inner Ben Franklin and take the “ounce of prevention is worth a pound of cure” approach. If the buy form only identifies one owner, that person should get the dog.
And if there are two or more owners, standard forms between a breeder and buyer should have a line where one owner is selected in the event of a disputed ownership between any of the joint owners. That way, the parties involved would be consenting to any further disposition of the dog from the start. This approach would consume almost no resources because it would be a single field added to a purchase form, and it would provide clear rules for any dog buyers so that the terms would be known to all involved, consented by all involved, and therefore, more fair than permitting someone to buy a dog and lose it in a divorce because the judge thought the other spouse was better for the dog.
Normally, the purpose of the law is to foster liberty and incentive good behavior. Granting someone else the permissive use of your property is otherwise considered a socially desirable act. That is why, letting other people use and enjoy things you own does not result in a transfer of ownership. The delegation of use is just that, and does not entail a transfer of ownership, otherwise, you would be legally discouraged from sharing with others.
In 47 states, the buyer of a dog gets to keep it in a divorce. This is a clear rule that encourages the permissive sharing and socialization of the pet, provides clear notice to all involved, and minimizes the use of judicial resources and legal fees.
Now, animal rights’ advocates are cheering the new laws in Alaska, Illinois, and California that take into account the best interest of the dog, without regard to the unintended incentives that arise discouraging permissive sharing of the pet with a spouse, the unfairness to the dog-buyer that he could lose his dog without notice of any objective event that he is no longer the dog’s ultimate owner, and in addition, there are the incredibly high legal fees that could be involved in determining the best owner of the pet that could cost 3-5x more than the purchase of the dog itself.