In divorce, who gets the family pet?

MARYLAND – Should a dog be treated like a child when couples divorce? It's a question people are talking about after a judge in Maryland ordered a divorcing couple to share custody of their dog.

A lot of people feel their pets are just a member of the family. However, until now, in divorce court they have been considered property. Either the pet goes fully to one party, or it's sold and the couple splits the proceeds.

For Gail Myers, "Lucky" is way more than a cute, loyal dog. 

"I  don't have any kids, so she is the closest that I am going to have to a child," Myers said. "I have another dog as well; they are both like my kids. So, when she decided to leave her husband, money and property didn't enter her mind. She left with "my clothes, a few personal items, and the dog ... That's all I wanted."

The problem is that her ex wanted Lucky too. And that made what was once a no-contest divorce into a rather testy battle. In Maryland, just as in Washington and Oregon, a pet is considered "property" – like a car or a house. 

"As a matter of law, a pet is personal property," reports the Oregon Divorce Blog. "The court does not have the ability to make an enforceable provision of a judgment providing visitation rights to personal property."

But shouldn't a dog be treated more like a child when couples divorce?

Maryland Judge Graydon McKee thinks so. He said he didn't think "it was fair" to force the Myers to sell the dog and split the proceeds.  So, he ordered joint custody.

Myers gets Lucky for six months. Her ex gets Lucky for the remaining six months.

It's a ruling that could shake-up divorce court for good. 

"It recognizes the emotional, reciprocal attachment between a pet and the other members of a family," said Myers' attorney,  James Maxwell. "In some instances it elevates the role of the pet to a quasi family member."

That brings us back to our question: Should a pet be considered like a child in divorce court? 

"It would certainly complicate divorce litigation, clearly," said Marlene Eskind Moses from the American Academy of Matrimonial Lawyers. "It would be a time-consuming proposition."

As it could become in the Myers' case.

Despite the custody ruling there are still questions. For example, what if the dog gets sick and veterinary bills accrue? 

"We're supposed to split the bills," Myers said. However, her lawyer concedes that "technically, that's not been flushed out in the order," he said.

Meanwhile, if either Gail or her ex decide they no longer want to share custody of the dog, they would either end back up in court to renegotiate the settlement. If one of them refuses to turn over the dog, that person could go to jail for disobeying the court order.

Also, if either decide they want to void the settlement agreement, they could go to court arguing that the pet-custody portion of the agreement is invalid because it does not follow current law. Without a clause in the contract saying "if one portion of this contract is invalidated then the remainder still stands," then the rest of the agreement could be thrown out.

So far, however, Myers said none of these options have become issues. Even if it becomes an issue, Gail Myers said she doesn't regret any of it. 

"I just couldn't bail on her," she said. "She's been there for me and has faith in me that I'm going to come home every night and feed her and take care of her."