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What will happen to my pet if my spouse and I divorce?

Posted on March 30, 2020 by Chris Kirker

Pets can offer us so much. In return for their boundless friendship, love, and companionship, many of us treat them just like any other member of the family. Indeed, by 2015, the Oxford Learner’s Dictionary had added the term “fur baby,” though, the term had already been popular among Austinites for quite some time. Like other family law matters such as property, guardianship and child custody, our pets are subject to the law of the state. Consequently, it is important to have an understanding of the current state of the law and how it can affect you, your pet, and your family. 

Recently, the Texas Supreme Court stated that “[p]ets are property in the eyes of the law…” This means Texas courts will treat pets just as any other personal property. Because Texas is a community property state, pets acquired during the marriage are presumed to be community property and will be divided along with all other community property. By the same token, if a spouse can prove by clear and convincing evidence that the pet was acquired before the marriage or that the pet was gifted to that spouse, then the pet will be considered to be that spouse’s separate property

While many of us would scoff at labelling our pets simply as “property,” pets are often treated as a special kind of property. Although Texas does not have the same “best interest” standard for pet custody determinations as we do for child custody, Texas courts often consider factors in determining pet custody that are not considered in determining how to divide other personal property. For example, the court may consider the parties’ work schedules, the pet’s primary caregiver, and which party has financially supported the animal. Additionally, the court may sign off on possession schedules that allocate time for both “pet parents.”

Though questions surrounding pet custody have grown increasingly common during divorce proceedings, many “parents” may prefer to avoid these expensive, time consuming contests altogether. Like with other forms of property, pet ownership agreements (sometimes referred to as “pet prenups” or “petnups”) can delineate the parties’ rights and obligations regardless of marital status, giving you and your family priceless peace of mind. A well-drafted pet ownership agreement will cover all aspects of pet ownership, including emergency contacts, rights of first refusal, financial support, and possession schedules. These ownership agreements are not confined only to pet parents contemplating marriage. Indeed, just as with cohabitation or partition agreements, pet ownership agreements can provide peace of mind for pet owners in a variety of non-marital circumstances. 

Whether you just picked up Fido from the shelter today, or he’s been by your side for years, it’s always a good time to ensure that his best interests are looked after. As pets steal an increasing share of our hearts, it’s important to plan for their futures. If you are considering the benefits of a pet ownership agreement or have questions regarding custody of your pet, contact Kirker | Davis LLP to schedule a meeting with a lawyer today.

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