A common question in a divorce is who gets to keep the pets. Whether it be a dog, cat, parrot, fish, bearded dragon, or snake, most pets are considered members of the family. There is no doubt that many people will advocate for their rights as a pet parent. But is there a required possession schedule so that each person has continued rights to visit the pet? In Texas, the answer is no.
Pets are property in Texas
Texas law treats animals as property. Beginning in 1858 with the Texas Supreme Court case of Howard v. York, Texas established that, not only are animals property, but they are characterized as either separate property or community property. Howard v. York, 20 Tex. 672 (Tex. 1858). Texas case law continued to develop and addressed that when an animal increases in value, the characterization of the value is the same as the animal’s characterization as separate or community property. See Stringfellow v. Sorrells, 18 S.W. 689 (1891) (Tex. Comm’n app. op. adopted). In 2010, the Austin Court of Appeals affirmed that pets purchased with a spouse’s separate property money remain the separate property of the spouse. For the past 160+ years, Texas has not changed its position that animals are property.
How are pets handled in a divorce?
At a final trial in Texas, animals are divided between the husband and wife just like all other property. One of the parties is going to be awarded the pet. This isn’t the case in all states though. Other states take a different approach. Alaska became the first state to consider the “well-being of the animal” in 2016. Illinois passed a similar law in 2018 requiring the court to determine sole or joint ownership of the pet. A recent law in New York (signed on October 25, 2021) requires courts to consider the best interest of a pet or companion animal during a divorce. The court is then required to take the best interest of the pet into consideration when awarding possession. It will be interesting to see the case law develop in New York as to the “best interest” factors of the animal and how best interest is determined.
What are the options for pets in a Texas divorce?
Outside the trial court, the parties can be creative with what happens to their pets. A possession schedule can be created very similar to the possession schedule for a child. Terms can be established for vet care and other pet expenses, similar to regular payments of child support. You can have an order for end-of-life care for pets that are older. You can have complex possession schedules including rights of first refusal if a party will be away from the pet overnight, as well as notice provisions when a party will be leaving town without the pet. Without agreements though, the trial court will divide pets as property along with all other property. It is important to understand how the Texas court will view your pet when going through a divorce.