Posted by Nydia Streets of Streets Law in Florida Divorce

Family dogs can be a source of emotional conflict in a Florida divorce when the parties do not agree on who should keep the dogs. Pets are considered property in Florida, and therefore are subject to equitable distribution just like vehicles, houses, etc. This can be difficult for parties to understand since pets are viewed by many as family members. A dispute over family pets was one issue in the case Harby v. Harby, 2D20-2602 (Fla. 2d DCA November 17, 2021).

The parties were married for about 16 years by the time a petition for divorce was filed. At a trial on the petition, the court considered the former husband’s alimony claim, his claim for child support, and distribution of the family’s two dogs. The court ultimately awarded the former husband alimony that would automatically increase based on future events, as well as child support that would automatically be modified once the former husband moved from the marital residence. The court also awarded the family dogs to the former husband despite the former wife’s claim that one of the dogs was an emotional support animal for her. The former wife appealed.

As to the automatic increase in alimony, the appellate court first noted “‘Judgments providing for automatic changes in alimony and support payments upon the occurrence of future events have not usually found favor in Florida.’ Kangas v. Kangas, 420 So. 2d 115, 8 116 (Fla. 2d DCA 1982) [further internal citations omitted].” The court went on “Nevertheless, Florida courts have upheld prospective modifications when ‘they are carefully conditioned upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.’” While the court determined the sale of the former husband’s current residence is fairly certain, it held the purchase of a new house and its estimated expenses are not: “Former Husband showed that two houses in Plantation Palms were listed for $214,000 and $259,900. But he based his future expenses on the purchase of a $235,000 house, exclusive of an estimated $15,000 for closing costs. Former Husband did not provide a basis for his estimated closing costs. Nor did he submit any evidence of a purchase agreement or that he submitted an offer to a seller for the price he desired.” Therefore, the prospective increases in alimony and child support were reversed.

As to the family dogs, the appellate court noted: “Each party has cared for the dogs, albeit, at different times. See § 61.075(1)(g). Former Wife took care of the dogs for several years until the parties separated in 2017. Former Husband cared for the dogs thereafter. Principally, Former Wife claims that justice requires the trial court to award the dogs to her because Liberty was an emotional support animal. Emotional support animals are typically given special considerations under the law, such as being ‘permitted as a reasonable accommodation for a person with a disability in housing’ or permitted in an airplane's cabin [internal citations omitted].” The court held “The evidence before us may indicate that Liberty was emotionally comforting, but it did not show that Former Wife had a disability or that Liberty provided emotional support to alleviate an effect thereof. Conversely, the trial court observed that Former Wife was in good health and did not note any physical or mental disabilities. Former Wife only proved that Liberty provided emotional comfort, as would any ordinary pet.”

As to the pets, the court concluded “The trial court may consider a party's sentimental interest in property, such as the ordinary attachment to pets, alongside the other factors of section 61.075. See § 61.075(1)(j) (permitting the 22 trial court to consider "[a]ny other factors necessary to do equity and justice between the parties"); [. . .] But Former Wife's argument rests on her apparent misconception that she is the only family member with an attachment to the dogs. The evidence reflected that the parties used the dogs to comfort the children throughout the dissolution proceedings, and the children resided a majority of the time with Former Husband. Further, Former Husband had been taking care of the dogs for the past three years. Liberty and Nico were family dogs, not Former Wife's personal dogs. We cannot conclude that the trial court abused its discretion in awarding the dogs to Former Husband.”

Schedule your consultation with a Miami family law attorney to understand how the law may apply to the issues in your case.