Who Gets the Dog (or Cat, or Guinea Pig) When you Divorce?

Today I'm going to try something different and, hopefully, fun.  I came across a hypothetical a couple weeks ago regarding a couple, two dogs, puppies, and divorce.  Lots of interesting issues that all involve equitable distribution.  After all, pets are property in North Carolina.

WHAT ARE THE FACTS?

Husband & Wife (H&W) separated in January 2016. Trial is bifurcated (split into two parts) and the actual divorce is finalized in December of 2016 leaving property (equitable distribution) and alimony to be determined at later date, which was extended until June 2018.

In November 2015, W gifts H a female great dane, 3 months old at purchase ($500). H leaves 6 weeks later (January 2016) and leaves the dog with W.

Wife cares for dog for over 2 years.  She feeds the dog high end food, reg vet care and H doesn't mention the dog until pretrial in October 2017.  In March 2018, W learns her male great dane has impregnated the female, and a few weeks later, female gives birth to 3 pups. H agrees W can keep the mother, but feels he is entitled to pick of the litter in exchange. W has had pups wormed and first round shots, can ask reasonable rehoming fees of $300. Pups are not papered and are not eligible for AKC registration.

ARGUMENT FOR HUSBAND BEING ENTITLED TO PUPPY OR PUPPIES 

Well, first we need to classify the puppies.  Are the puppies marital property or separate property?  If marital, are the puppies divisible property?  

It appears that the female great dane was a gift from Wife to Husband.  Husband will argue it's his separate property if he can show that Wife expressly intended for the dog to be his separate property upon conveyance of the dog and he'll likely prevail under NCGS 50-20(b)(2) if he can show the express intent by W that the dog was an "inter-spousal gift".  Basically, H has to show that W expressly said, "Happy _________, this is your dog" (or something similar).

Okay, so let's assume that H has established that the female great dane is his sole separate property.  What about the male great dane that W had who is the purported father of the puppies?  If purchased or acquired by W prior to separation but after date of marriage, then the male great dane is marital property.  However, if W acquired the male great dane after separation, it's W's separate property.

If W's male great dane is marital property, then the puppies are divisible and the argument turns to whether or not any active post-separation actions were undertaken by W to intentionally breed the two dogs.

ARGUMENT FOR WIFE BEING ENTITLED TO PUPPY OR PUPPIES 

For starters, W is going to argue that the female great dane was never an "inter-spousal gift" to H and is marital property, not H's separate property.  Wife's argument is that Husband cannot show express intent that the female great dane was a gift from her to him.

If W's "non inter-spousal gift" argument doesn't work, then Wife will argue that she increased the value of the female dog by taking special care of it over the years and it would be inequitable if the female great dane was deemed to be H's separate property.  See NCGS 50-20(c)(8).

Further, W will argue that since she intentionally bred the dogs and the result of her post-separation actions was more assets (puppies), that they are not divisible property but rather a product of her post-separation actions.  As such, the puppies would be her sole property.

Very interesting hypothetical situation, it gave me law school and bar exam flashbacks which will probably require some more therapy.

This one could go either way depending on some of the facts we don't know, who the Judge is presiding over the case, and the attorneys arguing for their clients.

Until next time, when we go over some Frequently Asked Questions.

*Nothing in this blog post is to be taken as establishing an attorney-client relationship.  This blog post is not to be construed as providing legal advice.