In Maryland divorce cases, pets acquired during the marriage are considered personal property. This means that current law entitles the court to determine ownership and nothing more. Not matters more suited to a member of the family, such as custody, visitation, financial support, or extraordinary expenses. To many, a pet is a beloved, constant companion and family member. The law has not kept up with the reality of the relationships between pets and their caregivers.
There are signs of progress. In 2011, the domestic violence law changed, empowering the court to award “temporary possession of any pet” in temporary and final protective orders. Reference to “possession”, instead of “custody”, is consistent with treatment of pets as property (as compared with “custody” used in reference to children). While a step in the right direction, this relief is limited to domestic violence cases and unavailable (for now) in divorce.
In the 2017 Maryland General Assembly legislative session, HB749: Annulment and Divorce -Property Disposition – Pets (to view the bill:http://mgaleg.maryland.gov/2017RS/bills/hb/hb0749T.pdf) would have allowed the court, in an annulment or divorce (limited or absolute), to resolve any disputes between the parties regarding ownership of a pet and to grant parties access/visitation rights with the pet. HB749 passed the House, but received an unfavorable report from the Senate Judicial Proceedings Committee. While defeated for now, Senate Judicial Proceedings’ narrow 6 to 5 vote gives hope for a better outcome in the next session.
The court’s tools to dispose of marital personal property in a divorce are extremely limited. The court is required to determine ownership of marital property, with solely owned property remaining with the owner (unless use and possession applies) and joint property sold. With respect to pets, ownership can be based upon title, purchase/adoption documents, and other paperwork indicating ownership (vet records and pet licenses, for example). However, if documentation is absent or inconclusive, one risks a finding of joint ownership and sale under strict application of the law. While anecdotally one hears of judges and magistrates arriving at more equitable and liberal outcomes, the only path to consistent (and preferred) decisions is a change in the law such as proposed in HB749.
Until then, parties can settle pet disputes, agreeing to ownership, timesharing, responsibilities, expenses, and any other matters and terms the parties desire. Consideration should be given to relocation, location and logistics of timesharing, regular/recurring versus extraordinary expenses, any reimbursement process, emergencies, and end of life decision making.
Fitting, perhaps, that the Maryland General Assembly declined to pass what would amount to a custody and visitation law for pets, when it has yet to do so regarding children. That is, though, a post for another day. In the meantime, HB749 remains crated until next Session.