WHO GETS THE PETS IN A DIVORCE?

By Carl Schoenherr , Esq.

Most people think about custody as it pertains to children in a divorce, but what happens when a couple has a pet?

Are pets treated the same as children, and does the court care about the best interest of the family pet?  For many people, pets are part of their family, and the issue of who gets the family pet in a divorce can be especially important, challenging and emotional. Unfortunately, this area of law can be particularly ambiguous when it comes to Virginia law, but I’ll “shed” some light on that in this blog.

According to Virginia law, pets are personal property, and just like any other personal property, they are subject to division by the court in a divorce case under Section 20-107.3 of the Virginia Code.  This section of the code focuses on equitable distribution – the process the courts use to identify and determine the value of assets and liabilities, determine which of those are considered marital vs. separate, and then divide these according to a series of factors (having to do with the marriage, acquisition, and care of the property).

Inherent in this process are a couple of takeaways for those who are concerned about the custody of the family pet.

First, the best way to ensure you get a pet in a divorce is to prove that he/she is your separate property. .  If you can prove the pet was purchased, or adopted, by you prior to the marriage without any funds from the other party, then the presumption would be that you get to keep the pet.  The other party would need to prove that they acquired an interest in the pet over the course of the marriage by significantly increasing the pet’s value through his/her own efforts.  Note that the courts are looking at the value to the general public, not value to an owner, so this increase can be difficult to prove

If the court determines that a pet is marital property, then the court uses the factors contained in the code to divide the property.  Some examples of things a court may look at include:

• Contributions, monetary and non-monetary, that a party made to the acquisition, care, and maintenance of the pet;
• Which party is in the best position to continue to maintain the pet;
• Any history of abuse or neglect of the pets; and
• Where any children who have bonded with the pet might be residing pursuant to a custody or visitation order.

Furthermore, the factors include a catch all, which provides sufficient leeway for additional arguments about where the pet should reside, which could potentially include the “best interests” of the pet.  Tailoring your evidence in a case to support the factors above, such as evidence as to who cared more for the pet, who spent more time with the pet, etc., will increase your chances of a court awarding you the pet in a divorce.   A court may order the pet and any value assigned to you outright, or award you the pet, but order you to pay a portion of its assigned value to the other spouse.

For many parties, the process of using the courts to decide whose “property” the pet is can seem cold and unfair.  This is especially true when the court assigns a dollar value to the pet that can never measure up to the sentimental value you place on him/her.  However, you have an alternative to using the courts.  Because the law considers pets “property,” a court will not set aside any agreement regarding the pet, unless the agreement is unenforceable as a contract.  Once you have an agreement regarding the pet, that agreement can be incorporated into and enforced by the court as part of the final order.

If you need assistance reaching an agreement, be sure you are working with a knowledgeable family law attorney who can counsel you on all of your options, such as mediation or other dispute resolution techniques.  The experienced attorneys at Curran Moher Weis are here to help you through that process and other complex aspects of a divorce and property division. Contact us for a consultation here.

Protecting your Children’s Health Care Coverage After a Divorce

There is hardly a subject more widely discussed and debated than health care coverage. If you are contemplating a divorce, or are currently pursuing one, and you have children, you are no doubt wondering how to protect your children’s access to health care coverage and services once a divorce were final. A Qualified Medical Child Support Order (QMCSO) might just be the underutilized tool you need to ensure that your child(ren) continue to receive the coverage they deserve.

Aside from an acronym that doesn’t quite just roll off the tongue, what else is QMCSO good for? I’ll help fill you in on a few key questions: (1) what is a QMCSO, (2) what does a QMCSO do, and (3) what are the requirements of a QMCSO?

(1) What is a QMCSO?

A QMCSO is an order made pursuant to the laws of a state court that provides for child support or health benefit coverage for a child of a participant under a group health plan.  It creates or recognizes the rights of an alternate recipient (not the participant) to receive benefits for which a participant or beneficiary is eligible under a group health plan.  As indicated in its name the order must be “Qualified”, meaning it must contain certain information and meet the requirements of the QMCSO provisions, which I’ll get to later.

(2) What does a QMCSO do?

In short, a QMCSO orders a health insurance provider to comply with state laws regarding medical child support.  Each state is required by Congress under the Employee Retirement Income Security Act of 1974 (ERISA) to have in place specific state laws relating to medical child support in order to receive certain federal funds.  Each state must have laws that:

1. a.  Require health insurers to enroll a child under his or her parent’s health insurance even if:
   1.   i. the child is born out of wedlock;
      1.   ii.  the child does not reside with the insured parent
      2.   iii.  the child does not live in the insurer’s service area;

1.   iv. or the child is not claimed as a dependent on the parent’s federal income tax return;

1. b. Require health insurers to enroll a child without regard to the plan’s open enrollment restrictions;
2. c. Require employers and insurers to comply with orders requiring a parent to provide health insurance for a child; and
3. d. Require insurers to permit a custodial parent to file claims on behalf of his or her child under the non-custodial parent’s health insurance, and to make benefit payments directly to the custodial parent or health care provider.

Note that a QMCSO cannot require a plan to provide any type or form of benefit not otherwise provided by the plan, except to the extent necessary to meet the requirements of the laws I just mentioned.

(3) What are the requirements of a QMCSO?

A QMCSO requires that one of the parents be ordered to provide health care coverage for a child under a group health plan.  It does not apply to government-funded health insurance plans like Medicaid because ERISA, the law which allows for the creation of a QMCSO, applies to private sector employers only.

So in short, a QMCSO can help you: if you want primary custody, but don’t want your child to lose the non-custodial parent’s health care coverage; if you want to be able to submit a claim despite not being a participant or beneficiary of the other parent’s health plan; or if you need to enroll your child outside of a provider’s open enrollment period.

If you’re feeling overwhelmed by this and other complexities involved in divorce, you are not alone. But that’s what we’re here for. One of our experienced family law attorneys at Curran Moher Weis can help make the difficult experience of divorce easier by helping you navigate whether you qualify for a QMCSO and whether it would be beneficial to you in your case.  Reach out to us to request a consultation here and learn more about child support in Virginia here.