Pets are a man’s and woman’s best friend! Who doesn’t love a four-legged furry friend? We know Americans sure do. The pandemic has proven this true with the infamous pet boom that resulted from many lonely quarantine hours. In fact, by October 2020, around one-third of Americans had brought home a cat or dog!
In Texas, 58.2% of all households have a pet. That’s more than half of the population of Texas! Compare this to other states like California, where only 40% of households have pets. Things really are bigger in Texas! With all of those fur babies running around Texas, it begs the question: what happens to pets in a divorce? Can you bring Fluffy into the courtroom and see who she runs to first? (Hint: no). What’s the law surrounding pet ownership in the event of a divorce? Let’s dive in.
Legal History of Pet “Custody”
The sad truth about the history of pet “custody” in the United States is that pets weren’t always treated like one of the children. To illustrate the societal views towards pets, let’s look at a very old case from the U.S. Supreme Court, Sentell v. New Orleans & Carrollton R. Co., 166 U.S. 698 (1897). In that case, the United States Supreme Court, unfortunately, declared dogs as “worthless” and even stated that, if unclaimed, dogs may be killed. Fortunately, the attitude towards pets has come a long way since that Supreme Court case. However, many states still consider dogs as personal property when it comes to divorce. In fact, in some states, cats and dogs of a divorce may be treated akin to an expensive piece of artwork or furniture. The good news is courts are not calling them “worthless” or ordering killings if not claimed anymore.
Most states, including Texas, still follow the rule that pets are personal property when dividing up assets in a divorce. In other words, most states apply the same rules in assigning ownership of a Picasso painting as they would a pet. The rule many states follow requires a pet to first be valued with a dollar amount and then appointed an owner based on that state’s personal property laws. In the minority of states, such as California and Illinois, have begun the legal trend towards treating pets in a divorce more like children. In 2016, Alaska was the first state to get this trend started and enacted a new pet custody law that takes into consideration the well-being of the animal. Texas has not yet gotten to that point, but no one knows what the future may hold. Let’s dig into exactly what happens to pets in Texas in the current legislature.
Pet “Custody” in Texas
Pet “custody” is not a formal legal term in Texas, but it refers to the question, “who gets to keep the pet in a divorce?” This question is answered in a similar way to any other personal property, such as a precious lamp. That’s right; pets are treated as personal property in Texas for purposes of a divorce. That means that the pet must first be determined as separate or community property, and it may be given a market or actual value to further determine ownership.
Texas is a community property state. That means if property is deemed “separate,” it’s generally not subject to division in a divorce. Separate property is typically property acquired before the wedding day. On the other hand, community property is generally acquired during the marriage. If the property is deemed “community,” then it’s generally subject to a 50/50 split. Now, obviously, that doesn’t mean they will literally split the dog 50/50 (ouch!?). It means that the dog’s dollar value will be added to the community pot, and each person will generally get the value of about 50% of the community pot. The court will then determine who gets the pet based on circumstances, such as who actually purchased the pet or who was the primary caretaker.
Let’s look at a real-life case of a couple fighting over pet “custody” in Texas back in 2010. In the case Calder v. Calder, the divorcing spouses were arguing over the ownership of their chihuahua named Clementine. It was undisputed that the dog was purchased before the wedding by the wife. Since Clementine was bought before the marriage, the court ruled the pup to be separate property and, therefore, the property of the wife.
Why does this matter? Well, if you can show that you purchased the pet before the marriage, you are more likely to be granted ownership of the pet.
Let’s look at a real-life case of pet “custody” when the animal was purchased during the marriage and thereby considered community property. What happens in that situation? Well, in Oldenburg v. Oldenburg, it was undisputed that the dog was considered community property, subject to a 50/50 split. Wife claimed that she adopted the dog, and it had been her companion for years. The dog slept in her bed, she took it to the vet, and it was like her child. Husband, on the other hand, claimed he was the main caregiver and took the dog to work with him every day.
The court ended up awarding the dog to the wife because she was the one who actually purchased the dog. She selected the dog, adopted it, brought it home, and had at least a part in its care. The court did not consider that the husband was the primary caretaker and took the dog to work with him every day. The court took the “strict property approach” and looked at the one simple fact that the wife purchased the dog. Whoever purchases the property has superior ownership.
What can you learn from this case? A Texas court may truly look at your pet as a piece of property. Even if you were the primary caretaker for all of Fluffy’s life, if your spouse purchased the dog, then they may have superior ownership rights over the animal.
What about my horse?
With all of that land in Texas, it’s no wonder some people may be wondering what happens to their horses and cattle! Not only horses, but cows, chickens, lizards, hamsters, birds, and any other animal kingdom friends. How are they dealt with in a divorce? The same principles will apply: the animal will be treated as personal property, determined as either separate or community property; if community, it may be given a dollar value, and then ownership will be awarded based on property rules.
In fact, a Texas court in Williams v. Williams, 2008 WL 5194227 (2008) heard a case about a horse named Pflamenco. The court determined that the horse was community property because the horse was born to the couple during the marriage. Why does this matter? Because your horses, lizards, birds, chickens, cows, and all the like will be treated the same way as property in the eyes of Texas law.
TX Pet Prenups
A pet prenup, or as we like to call it, a “petnup,” is a legal document between two people who are about to get married and includes a clause about the ownership and visitation of a pet. That’s right; you can include a clause about your pet, among many other clauses, that will determine the “custody” of the pet should you divorce. Getting a pet prenup in TX is a great tool to avoid the potential loss of your fur baby. Not only can you lay out who will get custody of the pet, but you can also outline a visitation schedule for your furry friend.
Conclusion
Pets are the heart and soul of our households! They bring joy and happiness to everyone, so it’s only natural to worry about what will happen to them in a divorce. In Texas, pets are treated like property, and similar principles will apply when dividing up a lamp and deciding on ownership of a pet. This is why it may be a smart idea to create a “petnup” (a clause regarding your pet in your prenup). A prenup with a pet clause can help prevent unwanted future loss of Fido and can even establish a visitation schedule!
If you are ready to get started on your prenup, you can do so right from the comfort of your living room today with HelloPrenup. With HelloPrenup, you and your future spouse can utilize our online platform and collaborate on creating your very own prenup. Each future spouse creates their own account and fills out a questionnaire to decide what will go in your prenup. Then the platform will help you resolve any differences in your answers. All that’s left is financial disclosure, signatures, and notarization. The cherry on top? It will cost you much less than the traditional methods of obtaining a prenup!
Christopher (“Chris”) is a Partner at Fears Law and he understands that every prenup is as unique as the couple requesting it. As such, it is both his goal and his practice to make sure that his clients’ prenups are tailored to fit their exact expectations and needs. Chris prides himself on his ability to deliver compassionate and clear consultations that result in client education and empowerment.
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