Family Lawyer
Divorces are already plenty stressful, and worrying about what will happen to your pet can make things even more complicated. Below are some ways that pets can be handled in a divorce or SAPCR through Texas law.
Although pets can feel like our children, in some states pets are considered property according to a family lawyer with our friends at the Brandy Austin Law Firm. Therefore, a court will not order custody or visitation rights. Still, a custody or visitation schedule with the terms of care may be agreed upon by the couple and included in the final divorce decree. Spouses can agree on the division of property and debt through mediation or an informal agreement. In the event that the spouses disagree, a judge must decide who will keep the pet. Establishing separate and community property will contribute to this decision.
Separate Property vs. Community Property
According to Section 3.001 of the Texas Family Code, a spouse’s separate property is:
1) the property owned or claimed by the spouse prior to the marriage
2) property acquired by the spouse during the marriage through gifts, devise, or descent
3) recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.
On the other hand Section 3.002 of the Texas Family Code states that community property is the property acquired by either spouse during the marriage that isn’t separate property. So essentially, community property is any property that is not deemed separate property. Section 3.003 then states that property possessed by either spouse during the marriage or during the dissolution of marriage is presumed to be community property. In order to establish separate property, there needs to be clear and convincing evidence.
The distinction between separate and community property is relevant since if the pet is established as the separate property of a spouse, that spouse will likely keep the pet in the divorce. Conversely, if the pet is considered community property, the judge will decide which spouse gets the pet. It is stated in Section 7.002 of the Texas Family Code that the court will order a division of the property in a “just and right” manner. A judge will consider multiple factors like who cared for the pet, who made medical decisions for the pet, and who found or picked out the pet.
What about service animals?
Pets that are service animals are still considered property under some state laws. Therefore, you will need to ensure that ownership of the service animal is included in the property division of the divorce decree. Further, if the service animal is for your child, the court order should include who will have ownership and be responsible for the animal, as well as whether the service animal needs to go with the child during visits between homes.
If you are interested in an agreed arrangement for shared pet custody or visitation you may want to speak with a family law attorney. A family law attorney may also be helpful with agreements concerning a child’s emotional support animal and in the unfortunate event that an ex-spouse denies you access to retrieve property awarded in the decree, including the pet, a family law attorney may help you apply for a “writ authorizing entry and property retrieval”. Ultimately, determining who will keep the pet can add to the stress of a divorce so staying informed may help relieve some of the anxiety. If you still have concerns and questions, consider contacting an experienced family law attorney.