An issue that courts are seeing more and more of are pet custody disputes.
According to 2006 survey of lawyers by the American Academy of Matrimonial
Lawyers, lawyers have seen a 25% increase in pet custody cases. The love
people have for their pets can lead to custody disputes that are as emotional,
as hotly contested and expensive as cases involving children. In San Diego,
California, it was reported that a doctor spent upwards of $150,000.00
in a custody dispute with his wife over their Pointer-Greyhound mix. The
three day hearing included reports by animal behaviorists, bonding studies
and video presentation of the dog's routine. While most cases involving
the family pet are not as extreme as the San Diego case, it is important
to understand how pet disputes are treated in a divorce in Texas.
In Texas, a pet is considered to be property and subject to a property
division much like a car or piece of furniture. The Court can award the
pet to one party or the other, and in rare circumstances, order the pet
to be sold and the proceeds from the sale divided between the parties.
Because a pet is classified as property, the Court is unable to order
a visitation schedule or support ("petimony") like they would
in a case involving children.
Whether the pet is considered to be community property or separate property
is determined the same way as with all other property. Any property acquired
during the marriage is presumed to be community property unless it was
acquired by gift, deed, or inheritance. For instance, if you and your
spouse purchased or adopted a pet during your marriage, that pet is presumed
to be community property. If, however, your great aunt Mildred died and
left you as part of your inheritance her Boston Terrier, the Boston Terrier
is presumed to be your separate property even if it was given to you during
the marriage. If the pet in dispute was yours prior to marriage, that
pet is presumed to be your separate property and not subject to division
by the court.
A distinction that is particularly important to breeders, ranchers and
farmers, however, is that if a separate property pet (prize-winning Pekingese,
cow, horse, etc.) gives birth during the marriage, that offspring is considered
community property and subject to division by the court.
If the court determines that the pet is community property, the Court then
has to determine to which party to award the pet. The court may consider
elements similar to the test in child custody disputes, what is in the
best interest of the pet. The Court may look at who has been the primary
caretaker of the pet, who has a closer relationship with that pet, who
is better able to meet the day-to-day needs of the pet, and even each
party's work schedule. If children are involved in the case, courts
have considered the relationship between the pet and the children when
determining to whom the pet will be awarded. The Court can also consider
the emotional impact that the pet would have if separated from each party.
However, because ultimately the pet is personal property, the Court may
consider other factors, like the value of the animal, in reaching a just
and right division of the community estate. This is particularly true
in cases involving very valuable pets, because the value of the pet may
exceed other assets in the case.
What the Court generally won’t, and arguably can’t, do, and
what many will be surprised to learn, is award "joint custody"
(joint ownership) of the pet and establish a visitation schedule for each
party. Those issues the parties will have to agree to themselves. Parties
have been able to reach agreements regarding "joint custody"
of pets and even establish visitation schedules; however, whether, and
how, the Court would enforce those agreements is questionable.
It may be possible for the court to award joint ownership of a pet as opposed
to joint custody but such a ruling has the potential to create significant
legal problems for the parties and arguably requires the court to make
a visitation schedule, which the Court likely doesn’t have authority
to do under current law.
The special relationship between people and their pets are getting the
attention of legislatures in other states. Many states are considering
legislation that recognizes that relationship and are not simply property.
Making such a distinction would give the authority to award joint custody
of pets much like they do with regard to children. For now, however, Texas
courts are constrained by the current laws which considers Fido or Fluffy
to be property and subject to division the same way as your furniture.