For most pet owners, their pets are an integral part of their family. When pet owners go through a divorce, they might be upset to find out that Texas law defines pets as property, making pets subject to division upon divorce if the pet is community property. The following blog discusses legal considerations parties should take into account when going through a divorce with pets and provide insight into how Texas courts treat custody and visitation when it comes to pets.
Community Property v. Separate Property: Why It Matters for Pets
Under Texas law, two types of property exist: 1). Separate property and 2). Community property. Separate property includes any property the spouse owned prior to marriage or any property the spouse acquired during the marriage by gift, inheritance or personal injury settlement. Community property is all other property acquired by the spouses during marriage. During a divorce, a court can divide community property but cannot divide separate property.
Since Texas law treats pets as property, a party should determine whether their pet is separate or community property to better understand if a court could “divide” the pet as property. For example, if a party adopts a dog prior to marriage, receives the dog as a gift, or inherits the dog, that dog would be that person’s separate property. Courts could not order that the other spouse gets the dog upon divorce due to the dog’s separate property nature. However, if the couple adopts a dog after their married, the dog would be community property and subject to “division” upon divorce.
A party should remember that a married couple’s property, such as a pet, is presumed to be community property under Texas law unless a spouse can prove the property is their separate property. In some instances, spouses may try to argue a separate property pet is community property in the hopes that a court might award them the pet in the divorce. For example, a couple might adopt a dog together prior to marriage, but only one person pays the adoption fee. Due to Texas’ inception of title doctrine, courts would still likely treat the dog as separate property if the party used their separate property money to adopt the dog prior to marriage. However, the burden would fall on the spouse to provide sufficient evidence, such as adoption paperwork and receipts, to the court during the divorce to prove that the pet is their separate property.
Who Keeps a Community Property Pet?
Parties must divide their community property upon divorce. The parties can agree that one spouse receives the pet upon divorce or, if the parties cannot agree, a Texas family law court will decide who gets the pet following the divorce. In either case, one party must be awarded the pet in the Final Decree of Divorce. This is the document that officially divorces a couple.
If the parties cannot agree, the judge must divide the community property during a divorce in a “just and right” manner. Of course, a dog cannot be split in half. A judge will take many factors into consideration when deciding who gets ownership of a community property pet, including possibly who took charge in caring for the pet, such as buying food and providing water, who attended veterinary visits and made medical decisions regarding the pet, and who found or adopted the pet originally. Parties who want ownership of their pet should gather evidence to show the court that they primarily take care of the pet, make the veterinary decisions, and overall have a closer relationship to their pet compared to their spouse. This evidence will help inform the judge when the judge is deciding to whom they should award ownership. The Final Decree of Divorce will list the person who the judge chooses as the new owner of the pet.
Once the divorce is final, the spouse awarded the pet in the final decree should take possession of the animal. If a party refuses to turn over ownership of the pet, the spouse awarded the pet can file an enforcement matter against their former spouse. In the enforcement matter, the party will ask the court to enforce the property division in the final decree and order the party to give the spouse possession of the pet awarded to them in the divorce decree. A party wishing to file an enforcement matter for possession of their pet must file the lawsuit within two years of the decree’s signature.
Pet Custody and Visitation Rights
A court will award ownership to one spouse but will not establish custody or visitation rights in connection to the pet. However, parties can agree to certain custody and visitation arrangements for their pet during the divorce process either informally or through mediation. Spouses can avoid additional legal expenses if they can reach an agreement regarding custody and visitation rights for their pets.
Parties can agree to a possession schedule, similar to a possession schedule in cases dealing with children, if they want to share time with their pet. For example, a spouse can have a one week off, one week on possession schedule where the spouse has possession of the pet every even week each year while the other spouse has possession every odd week. When the spouses have children, parties might find it beneficial to have the pet’s possession schedule mirror the children’s possession schedule so the pet moves between the houses with the children. If parties agree to a possession schedule, the parties should also consider adding additional provisions regarding medical expenses, food, grooming, holidays, and decision making rights in the case of serious health complication, to name a few.
Before agreeing to custody or visitation rights, a party should be sure sharing custody or giving their spouse visitation rights is in their best interest. For example, does a party want to continue seeing their spouse on a consistent basis following a divorce? What happens when one or both spouses get new partners? Who will pay for the pet’s food and medical expenses? What happens if the pet gets sick and the parties disagree on the next course of action? What might appear easy at first, doing “split custody” or otherwise designing a visitation schedule, can quickly turn into a complex, and possibly expensive, endeavor. However, if the parties come to an agreement, the person drafting the Final Decree of Divorce should include the pet custody and visitation agreement in the decree.