From The Arkansas Lawyer Spring 2022
By Arkansas Bar Association
Written by Michelle Strause
Throughout American legal tradition, the family pet has been viewed as chattel.1 Courts have customarily treated the dog the same as the rocking chair or automobile in the context of divorce. Pets are an integral part of our individual households and pet popularity has continued to increase in our society.2
It should therefore come as no surprise that attitudes about the legal status of our four-legged friends are beginning to change as well. For a couple who love and care for their pets, splitting up is already difficult, complete with highly charged emotions; finding out their beloved companions are subject to disposal like property can be extraordinarily distressing.
While Arkansas still considers pets personal property, a growing number of states are beginning to take account of animals’ interests during the divorce process.3
Pets in Arkansas — The Bundle of Sticks, But No Fetch
Arkansas currently makes no distinction between living and nonliving personal property in divorce litigation; family pets are allocated as any other personal property.4 Property is generally distributed based on whether it is marital or separate property.5 Generally, separate property includes property owned before marriage, purchased with nonmarital funds or acquired by gift. Marital property consists of property acquired during the marriage or property to which both spouses contribute to the purchase.6
McKinnis illustrates the strong emotions and disagreements which can surface when parties litigate the issue of ownership of a family pet. Randy and Brenda McKinnis were married for three years. During that time, two golden doodles, Max Von Doodle and Zoey Belle, were brought home about a year apart. The purchase, training, maintenance and grooming of the dogs were paid by Brenda using her premarital bank account. When divorce became inevitable and property division was discussed, the two very strongly disagreed about the dogs. According to trial testimony, both parties referred to the pets as family. When the parties moved from their home, Brenda attempted to take both dogs; when Randy realized she was taking the dogs, he emotionally confronted her and attempted to block her exit. The police ultimately allowed Brenda to take the dogs when she left.
At trial, testimony and documentary evidence revealed Brenda paid for the dogs out of her premarital account. Brenda maintained the pets were her separate nonmarital property but asked in the alternative for an unequal division in the event the dogs were found by the court to be marital, pursuant to Ark. Code Ann. § 9-12-315(a) (1)(A). Randy contended the pets were marital property, subject to division or court-ordered sale. The court ultimately agreed with Randy and found the dogs to be marital but awarded them to Brenda as an unequal distribution because the court found that Brenda primarily contributed to the acquisition and the preservation of the dogs.
Randy appealed to the Arkansas Court of Appeals, and the appeal resulted in affirmation of the lower court’s assessment about the dogs. The Court of Appeals did not, however, agree with the court’s assessment on money issues. The case was remanded for further proceedings.7 Needless to say, this became a very expensive divorce, both financially and emotionally.
When sentient living marital property becomes the subject of acrimonious proceedings like McKinnis, courts can order the pets sold, divided, or awarded to one spouse. Under present law, the courts in Arkansas really have no other options.8 New legislation would be required to allow for any other considerations.
Some states have abandoned the traditional property law approach in favor of a system that considers the best interests of the pets themselves. The number of states that have done this is small, about four at the time of writing.9 With the burgeoning popularity of dogs as lifelong companions, there is a definitive shift taking place where the modern trend may one day soon be the majority approach.
Alaska has mandated that courts consider the “well-being of the animal” in divorces.10 Illinois11 and California have both adopted this approach. New York courts have adopted an approach that requires consideration of what is “best for all concerned.”12 When considering which party should be granted custody of the pet, their courts consider the likelihood of where the [pet] will prosper, where it will have a better chance to love and be loved, and which party can better meet the pet’s physical and emotional needs.13
Karis Nafte, veteran dog behaviorist, mediator and pet custody specialist, points out there is a much better way. Nafte instructs judges, mediators, and lawyers on what to look for in determining a dog’s best interests. She urges couples to first try to agree on the overriding principle of finding the best solution for their pet, giving their pet the best life available under the circumstances, and to try to resolve pet custody issues rather than litigation.
She notes shared custody should not be the go-to solution, it being primarily for the benefit of the humans involved, not the animals. It should be employed only if the parties can agree, get along well and, most importantly, if the pet can tolerate it.14 If there are no children involved, the parties need to be reminded that shared custody will require continued contact with their ex for years to come. Most of the time, shared custody does not work, not in the long run.
During separation and divorce, family pets may react to the emotions of the couple by engaging in behaviors unusual for them: excessive chewing or barking, urinating in unusual places or other signs of stress. There is a mistaken belief their pet is “angry at them” or somehow “upset” by the other partner; this is an all-too-common tendency to inappropriately humanize the pet. Nafte assures us that dogs are animals with beautifully simple emotions; they excel at reflecting stress in their environment through their behavior. They can sense if their person is upset; they read body language and they commonly show initial intolerance to new places and unfamiliar routines. They cannot be assigned complicated emotions such as anger, shame, guilt, or resentment. Personalizing our pets is a mistake, especially when it comes to dog custody.
Resolution through mediation is by far the best solution for dog owners who love their pets. The mediator’s questions should focus on the pet’s age, breed, exercise and routine, as well as their bond with children or other pets in the household. Medical history and cost considerations can also be discussed.15 Nafte recommends that lawyers and mediators handle the issue of the family dog first in negotiations. Approaching the issue head-on helps the couple find possible early success in mediation on a very emotional issue; it also prevents the couple from weaponizing or bargaining with their pet later in the mediation.
1. Harold W. Hannah, Animals as Property: Changing Concepts, 25 S. Ill. U.L.J. 571 (2001). 2. Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1, 19 (2006). 3. See generally, Jared Sanders, Who Gets the Pet in the Divorce? Examining a Standard for the New York Legislature to Adopt, 37 Touro L. Rev. 499 (2021). 4. See generally McKinnis v. McKinnis, 2020 Ark. App. 479, 612 S.W.3d 730. 5. See generally Ark. Code Ann. § 9-12315. 6. See generally Ark. Code Ann. § 9-12315. 7. The author served as both trial and appeal counsel in McKinnis. 8. McKinnis v Mckinnis, supra note 4. 9. Sanders, supra note 3. 10. Alaska Stat. Ann. § 25.24.160 (a)(5). 11. S.B. 1261, 100th Gen Assemb., Reg. Sess. (Ill. 2018) (also known as Public Act 100-0422); Cal. Fam. Code § 2605 (also known as AB 2274). 12. Travis v. Murray, 42 Misc. 3d 447, 455, 977 N.Y.S.2d 621, 628 (2013) (quoting Raymond v Lachmann, 264 A.D.2d 340, 341 (1st Dept 1999)). 13. See generally, Mitchell v. Snider, 41 N.Y.S.3d 450 (Civ. Ct. 2016). 14. Nafte, Karis, Interview by Michelle Strause. January 27, 2022. 15. Nafte, Karis, Three-Part Pet Custody Course, www.whokeepsthedog.com.