Here is how pet custody agreements work during the divorce process.

An increasing number of couples are opting to forego having kids in favor of a pet (or two). In fact an average of 7 out of every 10 Gen Z adults would choose having a pet over having a child, and Millennials are similarly inclined. This seems to stem from a variety of factors, ranging from the increased cost of living, to more career-focused lifestyles.

But the rise of the “fur-baby boom” raises a significant question: who gains pet custody in a divorce?

Pet custody agreements will vary from state to state, and if you’re based in the Lone Star State they can be particularly unique. Here’s a breakdown of pet custody laws in Texas.

Pet Custody & Visitation In Texas

Texas is somewhat unique in that Texas courts will not order pet custody or visitation in family law cases. This is because pets are considered property.

Your pet’s categorization as property means that they will likely be “divided” as such, so this will be largely impacted by the property division agreement you make with your spouse. This also means that pets are subject to the distinction of separate property and community property. What is the difference between separate property and community property in Texas law?

• separate property – this describes property obtained by one spouse before the marriage or in specific circumstances during the marriage. This property will generally be viewed by the Court as belonging to the spouse that initially obtained the property.
• community property – this describes property obtained during the marriage, and is considered jointly/equally owned. If you acquired your pet during your marriage, they will likely be viewed by the Court as equally owned by you and the spouse you are divorcing.

If a judge is left to decide which spouse will keep the family pet, they will consider when the pet was obtained, and by whom. As with any case with complex division of assets/property, it’s crucial to talk with an experienced attorney about how to navigate the process.

How To Get Pet Custody or Reach A Pet Custody Agreement

While a judge will not order pet custody or visitation rights, you have the option of forming an agreement with your spouse. This is best achieved through mediation, because it provides you with an opportunity to be creative with your solutions. If both sides agree, you and your spouse can create arrangements for sharing custody of your pets that are tailored to your specific situation.

If an agreement can’t be reached in mediation, the judge will decide who will keep each pet. They will consider the full history of the pet/family relationship, including:

• which spouse acquired the pet
• which spouse provided the most care
• who made the most veterinary choices
• whether the pet is separate property or community property (ex. a pet obtained by one spouse before the marriage, i.e. separate property, will usually go to the spouse who owned the pet before the marriage)

Unfortunately, because of pets’ designation as property, this can become complex. For example, the Texas divorce case Arrington vs. Arrington resulted in Ruby Arrington becoming the managing conservator of the family dog, but it wasn’t until an appeal by her husband that he was granted visitation rights.

Another dog custody case in Texas, Oldenburg vs. Oldenburg, involved a contention over the possession of the couple’s Shih Tzu. Though both parties claimed that they were the dog’s primary caregiver, the possession of the dog was ultimately awarded to Lisa Oldenburg, as she was the one who found the dog on the SPCA website and obtained it.

Invest In Legal Guidance

The divorce process is rarely simple. And pet custody cases are no exception. The categorization of family pets as property could result in contentious property division disputes, and you’ll need the help of your lawyer every step of the way.

For the best outcome, it’s important to begin sharing your plans and concerns with your lawyer as early as possible. Many aspects of pet custody agreements (and especially appeals/modifications afterwards) are time sensitive, and acting early is necessary.

That’s where Capps Law Firm, PLLC can help. Kelly J. Capps is one of the most committed and reputable divorce attorneys in Texas, named to the 2022 Texas Super Lawyers list for outstanding legal counseling and services. We are equipped to help you achieve the best outcome for any property division in your divorce, including your pet! Contact us today to learn more.

Notice
This article does not create an attorney-client relationship. Its purpose is to educate the public about the topic of family law. This article should not be seen as legal advice. You should consult with an attorney before you rely on this information.