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San Jose Family & Divorce Lawyers / Blog / Divorce / Division of the Family Pet: Custody Issue or Property Dispute?

Division of the Family Pet: Custody Issue or Property Dispute?

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As reported last week on TMZ.com, a final judgment of divorce was entered in the Johnny Depp and Amber Heard divorce case.  Along with an approximately $7M settlement, Amber also received the parties’ dogs, “Pistol” and “Boo.”

Although not an issue that comes up often in divorce cases, there can be a dispute as to who should get to keep the family pet. Many people assume that determining who gets a family pet is a “custody” issue. However, the law is clear that pets are personal property to be divided in the same manner as any other item of property, such as a vehicle. It is highly unlikely thus, that a Santa Clara County family law court would entertain requests for custody of a pet, or a timeshare plan. Rather, in the event of the dispute, the court would more likely determine whether the pet is “separate” property or whether it is “community”. If the pet was owned by one party prior to the marriage, or purchased with a party’s “separate” funds, then the pet would be confirmed to that party. If, however, the pet was purchased during marriage, with “community” funds, the analysis is not so simple. The court could look at factors such as the parties’ respective psychological attachments to the pet, whether one party was the sole or primary caretaker of the pet, etc. The division of a pet can be difficult because often both parties are attached to the pet, and simply offering to buy out the party who does not get the pet, as would happen with a vehicle, for example, would not compensate that party for the emotional attachment to the pet.

Even though pets are treated as items of property for purposes of deciding who gets to keep the pet in a divorce case, the court MAY include a pet in a Domestic Violence Restraining Order. California Family Code Section 6320(b) provides that the court may grant one party exclusive possession of an animal and it may order a party to stay away from said animal, on a showing of good cause.

If you have questions regarding property division in your divorce case, including the division of family pets, or protecting a pet through a Domestic Violence Restraining Order, contact Argyris Mah, LLP at 408-214-6366 to schedule a free telephone consultation.


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