New California Law on Care of Pets in Divorce Proceedings

The San Diego Union-Tribune reports that California recently passed a law (AB 22764) clarifying how courts may take into account care of pets in determining who will receive them following divorce proceedings.

The text of the new section 2605 of the Family Code (which will go into effect on January 1, 2019) is as follows:

2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. 

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. 

(c) For purposes of this section, the following definitions shall apply: 

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter. 

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Prior to the passage of this law, pets were deemed community property to be split equally among the parties to the proceedings. Now, courts have a formal basis for considering which of the parties to the divorce fed the pet, took the pet to the vet, or cared for the pet in other ways in determining which of the parties should get custody.

Notably, subsection (c)(2) specifies that this law only applies to pets that are "community property," so this law does not apply to pets that either of the parties may have had before the marriage. As for pets that both parties bought or adopted together, but before they were married, this could be complicated. If one of the parties paid for the pet, the court may well view that pet as that party's separate property. If the parties adopted the pet from a farm in northwest Iowa without making any payments, this could make things more difficult to determine. The parties could also agree in writing that a pet owned prior to the marriage is deemed community property following the marriage.

All of this seems very complicated, so the California legislature would do well to pass a law clarifying the disposition of pets obtained by two people in a relationship before the marriage. A simple solution would be preferable, such as (just off the top of my head) a law that the pet should go to the third party the married parties know from law school who frequently cares for the pet while the married parties are out of town. That law has yet to materialize, but at least for now, judges have a formal basis to consider care of pets when determining who gets custody.

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North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

From the Washington Post:

A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.

The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.

North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.

The Court of Appeals' opinion is here. From the introduction to the opinion:

This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.

READ MORE - North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

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