Local family law attorney Tosha Jean Kotz has an excellent article, “Dogs & Divorce,” in the most recent SC Lawyer magazine. The article briefly discusses the history of how the law has treated animals before thoroughly examining recent state statutes and case law (none of which is from South Carolina) on how to treat pets in property division.
Historically, the law has treated animals no different than other item of personal property–something akin to a chair or television. The court would value the animal and divide the value. And value, in this context, was stripped of emotion: it was the price a willing buyer and willing seller would agree upon with no compulsion to buy or sell. In that system, the value of a thirteen year-old daschund with hip dysplasia was likely pretty minimal–perhaps negative. But to the human companion, that pet is significantly more valuable than an item of personal property that would cost multitudes more on the open market. The key distinction: that pet isn’t fungible and has emotional value to the human. Further, in equitably dividing marital property, the family court had never previously been asked to consider the emotional well being of the property it was dividing. “Dogs & Divorce” highlights a trend in the law in which family courts are now being asked to consider this.
The law has slowly drifted away from treating animals as inanimate, fungible items. As English Philosopher Jeremy Bentham noted in his 1789 work, An Introduction to the Principles of Morals and Legislation, “The question is not, Can they reason?, nor Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?” In Bentham’s time many of the animals the typical human owned would be livestock: the 18th century version of your car or your grocery store butcher/milk department. While people might develop an emotional attachment to their horse, cow, pig, or chicken, this emotional attachment wasn’t the primary reason folks owned animals. Now, absent divorce cases involving farmers and ranchers, most property division disputes involving animals involve animals as pets. And with pets the primary value of the animal is the emotional attachment and, in dividing it, a court might want to consider the emotional well being of that animal.
The law does a poor job of addressing emotional value. It doesn’t do it well in tort law. It rarely does it at all in contract law. In family law the amorphous, “best interest of the child(ren)” standard is, in part, an attempt to address it in custody cases. Until recently, family courts have not been asked to consider the emotional well being of animals.
When I attended law school in 1988-91, few offered courses addressing animal rights. Peter Singer’s 1975 book, “Animal Liberation: A New Ethics for Our Treatment of Animals,” instigated the development of these courses and now almost every law school has one. But there’s no obvious right answer as to how much consideration the law should give to the emotional well being of an animal. If someone wants to take a jackhammer to their television, we might consider him misguided but we wouldn’t want to outlaw it. Few would advocate for a similar right to take a jackhammer to one’s pet. Yet I doubt anyone but a few extreme animal advocates would place the moral considerations we owe a pet on the same level we place a child’s. If the law moves towards treating pet “custody” with the same diligence it treats child custody, it will be a boon for family law attorneys but a burden for the family court system and the families who enter it.
On the emotional consideration issue, “fungible personal property < animals/pets < humans” is a formula most humans would agree upon [and yes, I see the problem in allowing humans to impose this formula]. Ms. Kotz’s article shows the law just beginning to grapple with the question of where and how to place animals and pets on this spectrum. I expect the law will still be grappling with it long after I retire.
