Monthly Archives: August, 2012

Staying Together For the…Dog?

Are pets property or members of the family? Until recently in American history, pets have merely been property in a cute and playful package. Yes, the dog was fun to play fetch with, and the cat was adorable, but they were still just considered property. However, the recent increase of “pet custody” cases give credence to the idea that pets are more than just a purchase from the pet store. Our animals are considered to be part of the family, tagging along on road trips, sleeping in our beds, and, now, part of some custody battles in divorce cases.

The Humane Society of America estimates that 39% of U.S. households own at least one dog, and 33% of U.S. households own at least one cat. As most divorces show, people tend to fight over who gets what: who gets the car, who gets the house, who gets custody of the kids, etc. so it naturally makes sense that a divorcing couple would disagree over who can keep Spot or Ms. Kitty.

A wonderfully clarifying article on this topic was published in 2006 by the American Academy of Matrimonial Lawyers, and written by Ann Hartwell Britton. According to Britton, “The party that can prove the strongest ownership rights, . . . by showing proof with receipts of purchase and veterinary care, can build a strong case for keeping the animal, whether that person has suitable housing for the animal or not.” So, the party who can show they financially provided for the pet is the party who generally gets custody.

Courts around the nation have reacted to pet custody cases in a variety of ways, from open hostility to indignity to complete understanding. Based on the jurisdiction and the individual judge, the family pet may go to the person who pays for its food and vet bills, or it may go to the person who showed it the most love and attention, or the judge may decide an alternative arrangement. Other than custody, which may or may not be ruled on by a court, pet support is often an issue in these cases. Britton goes on to explain in her article that “pet support is best negotiated in an out-of-court settlement because courts that view pets as property will not order support.”

So, ultimately, who gets the dog?  Britton opines based on her analysis of the case law that it truly depends on which jurisdiction the case is in, and who the judge is. She does go on to claim that “it is high time we recognize our pets as more than mere property and dispose of archaic thinking that a dog’s ‘plight doesn’t amount to a handful of kibble when a couple splits up.’”

 

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What’s in a Name? Legal Separation vs. Divorce


A common misconception when getting a divorce is that separated=divorced. That’s actually not the case. Being separated is, legally, substantially different from being divorced. And once a couple is separated, that does not necessarily mean they are legally separated. Confused? Here’s the breakdown:

  • Divorce” means that the couple is no longer legally married by order from a court. Based on the facts of the marriage, a judge has ruled that the parties are no longer married, so long as the parties have been separated “mutually and voluntarily” for at least 6 months.
  • “Separated” means that the couple is living separately with no other real implications.
  • Legally separated,” based on the DC law, means that the parties to the marriage are no longing living together or engaging in sexual relations. This is usually a step towards getting a divorce.

The main difference between a divorce and a legal separation is the amount of time the parties have been living apart with no cohabitation (cohabitation=sexual relations). For example, in DC a divorce can be granted if the parties have been mutually and voluntarily separated without cohabitation for six months. While a legal separation can be granted under the same grounds, a legal separation doesn’t have the same effect of a divorce. A divorce legally separates two people. Mr. and Mrs. Smith become Mr. Smith and Ms. Jones. Their property and debts are divided, child custody and support is determined if applicable, and a creditor cannot go after the other spouse after a divorce is granted.

Most basically, a physical separation is necessary to be considered legally separated or to be granted a divorce. Each step is part of the process to go from a legal entity as a married unit, to two separate legal persons. Each step has a different criteria, and different impacts on finances and other areas of everyday life. It is important to remember that each step on the divorce continuum is seen differently by the courts, and by the law.

Splitting Hairs: LGBT Divorce in MD

There are multiple legal complexities that come with getting married; even more for same-sex couples. Besides the taxation issues, potential employment issues, and other issues regulated by the federal government via DOMA (Defense of Marriage Act), marriage for same-sex couples brings many obstacles to the table. One such obstacle is divorce. Divorce is the final separation of a legal marriage where the marital assets are divided, but if your state doesn’t recognize your marriage, how can you legally get a divorce?

Maryland is a vibrant and diverse state, so it makes sense that in February 2012 the Maryland General Assembly passed the Civil Marriage Protection Act  to legalize same-sex marriage, which was signed by Governor Martin O’Malley on March 1, 2012. The progression of the law was halted by a political challenge that landed the law via referendum on the 2012 general election ballot to be held on November 6, 2012. While the law granting same-sex marriages is in limbo until November, where do Maryland same-sex couples seeking divorce stand? What are their options? For example, if a same-sex couple is married in DC, move to Maryland, and wish to get a divorce about establishing legal residency in Maryland, do they have to wait to get that divorce until the general election? The Maryland Court of Appeals has ruled that same-sex divorces can be granted in Maryland even though same-sex marriages are not yet legal in the state.

In the May 18 ruling, the high court stated that, “A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statues, reported cases, and court rules of this state.” This decision in Port v. Cowan lends tremendous support for the push to legalizing same-sex marriage. A ruling that recognizes out-of-state same-sex marriages grants rights and protections to same-sex couples that otherwise would not have existed. This is another step in the state-wide acceptance of same-sex marriage, which could culminate in the voter acceptance of the marriage equality bill this November.