Pet Custody in Texas: Who Keeps the Pet in a Divorce?

Originally published by Hendershot, Cannon and Hisey, P.C. Blog.

For many Americans, pets are part of the family. While that means our pets can bring years of companionship and joy, they can also become a significant point of contention when spouses choose to divorce. In fact, the issue of “pet custody” has evolved so much throughout the years that it’s become a matter many courts across the country are willing to hear, as well as a focused niche in family law.

At Hendershot, Cannon & Hisey, P.C., our divorce and family law attorneys have worked with all types of clients – from individuals and single parents to large families, married business partners, and yes – pet owners.

Because we know each client has their unique goals, we’re passionate about structuring the strategies to address what matters most them, and what’s most appropriate for their given circumstances. If your pet is part of your family, then we know it’s important to make them a priority – even if Texas courts that have traditionally treated pets as property fail to fully grasp that pets’ value is far more than monetary.

If you are considering divorce and are concerned about what will happen to your furry friend (or any pet or animal you’ve owned with a spouse), working with experienced attorneys can make all the difference in reaching a workable resolution. To help you understand how pets and divorce work in Texas, we’ve put together a few important things to know.

Pet Custody & Divorce: New Trends for the Modern Family

The role pets play in the family unit have made pet custody an increasingly more common area of focus in many divorce cases. Some of the latest developments related to pet custody and divorce make it clear it’s becoming an issue that’s gaining attention:

• According to a report published by the American Academy of Matrimonial Lawyers, there was a nearly 30% increase in family law cases involving issues of pet custody between 2009 and 2014. During that same five-year period, almost a quarter of attorneys also reported an increase in cases where family judges characterized pets as assets in divorce.
• Dogs and cats are the most common animals involved in divorce-related pet custody. However, there have been documented divorce cases involving all types of pets and animals, including reptiles, birds, and exotic animals. While many Texas divorces involve farm animals and cattle and livestock, those animals tend to viewed in terms of their monetary value, rather than the emotional value we attach to household pets.
• Alaska became the first state in the nation to pass pet custody legislation in 2017. Under that state law, courts can consider the wellbeing of pets when making decisions over which spouse will be awarded custody, similar to how courts consider the wellbeing of children in proceedings over child custody (or “possession and access” as it’s known in Texas). A similar law passed in Illinois took effect in 2018, and a measure in California providing judges with the power to treat pets as people (by considering their best interests) became law on the first day of 2019.
• Advocates and lawmakers from across the country are supporting efforts to raise awareness about this unique issue and introduce and pass pet custody legislation in other states. Earlier this year in Pennsylvania, for example, lawmakers introduced a measure that would differentiate domesticated pets as “companion animals,” and allow judges, if necessary, to decide upon custody of the pet.

Pet custody is certainly not a new issue; spouses have been battling over pets or animals in family courts for decades. However, a lack of clear legislation on how pets are to be viewed in divorce, in addition to the larger role they play in modern families, often means it becomes a matter of discretion, with some judges taking the issue more seriously than others.

Still, it’s indisputable how much we love our pets, and questionable as to whether we may love them even more than people. As one New York State Supreme Court judge who oversaw a pet custody trial involving a mini-dachshund in 2013 noted in his opinion:

“People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry.”

Pet Custody in Texas Divorce Cases

Although there has been no specific pet custody law passed in Texas, there are still many pet owners who wish to protect their relationships with their pets when it comes time to divorce, and many cases in the past that have dealt with all types of situations and disputes related to shared animals.

Even without a statutory law, there are a few things to consider when dealing with pet custody in a Texas divorce:

• Pets as Property – The status quo in most Texas divorce cases is to treat pets like personal property. This means they can be deemed community property or separate property. In these cases, courts will generally follow statutory laws when awarding a pet to an owner who purchased or adopted the pet on their own prior to marriage (separate property).
• Discretion – Although pets can generally be considered property in divorce, any owner knows they are far more than that. Given the emotional significance of the relationship between owners and their animals, judges may exercise discretion to allow owners to raise arguments over custody arrangements, and even consider the best interests of the pet. However, there’s now law requiring that they do.
• Agreements and Options – As with many aspects of divorce, couples may have the ability to reach mutual agreements with one another over what happens to family pets. This may be facilitated through out-of-court negotiation or mediation that resolves the issue with a property division agreement. It can also result in any number of options for what that agreement looks like, such as having one spouse take one pet and another spouse take the other, or awarding a spouse other assets in exchange for possession of the pet. For some divorcing spouses who end a marriage on good terms, or for whom their pets are that important, it can even involve time-sharing or visitation, depending on their personal wishes.
• Disputes – Although pets bring us unconditional love and companionship, they can become a focal point for disagreement in divorce. When disputes arise, it becomes important for pet owners to work with experienced attorneys who can leverage their understanding of existing laws, case law, and their ability to illustrate the unique and special relationships clients have with their pets when pursuing a positive outcome. This can be especially important in cases where custody of a pet is being sought as a means to harm the other spouse (i.e. as an act of “revenge”), or when there are other factors involved that would mean pets carry more “value” in terms of being a unique asset, such as pets used as show animals, for breeding, or for performances.

HCH: Protect Your Rights & What Matters Most to You

Hendershot, Cannon & Hisey, P.C. has earned national recognition as proven and experienced divorce and family lawyers, as well as the trust of clients who valued the personalized focus and dedication we devote to their cases and the issues which matter most to them. By working closely with clients, we gain a better understanding of the key issues in their cases, and are driven to help protect their rights as we pursue the most positive outcome possible.

If you have questions about divorce, property division, or your pets, our team is here to help. Call (713) 909-7323 or contact us online to speak with an attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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