By Marilea W. Lewis

We all know them. They are named “Max”, “Bowser”, “Fifi”, or “Fluffy”.  They are our pets.  A survey in 2008 showed that there are approximately 74,000,000 pet dogs in 43.5 million homes and 90,000,000 cats in 37.7 million homes.  Just like children, they add a special significance to our lives. But what happens to the animals during a divorce?  Can the court give someone custody?  Unlike children, in the case of divorce, there are no visitation schedules or terms of possession for furry friends.  Pets, even companion animals, are personal property in the State of Texas.  Because they are property, they are subject to being part of the property division made by the court.

Many Texas counties have now enacted standing orders that control what actions can be taken during a divorce.  Among these are provisions for the family pets.  In Dallas County, the standing order provides specific protection for family pets or companion animals.  Both parties are ordered to not harm or interfere with the “care, custody, or control” of a pet or companion animal.  This recognizes the importance of the family animals.

While Texas has many laws protecting animals from cruelty and misuse, there are no laws providing for an on-going relationship between a pet and the owner after divorce.  Consequently, the “custody battle” for a beloved pet can be particularly difficult.  It becomes necessary to treat the fur baby as any other contested item of property. And the attorney’s fees can mount up quickly.

The best way to handle the situation is for the parties to agree who gets the pet.  The worst way is to decide that no one wants the pet and the pet ends up in a shelter. Of course, it can be left up to the judge.  If that is what is to happen, there are ways to prepare for the award of the pets.  One creative way would be to prepare a video of the pet and the party, showing the relationship between the two. Additionally, proof that the animal was a gift from one spouse to the other may establish a separate property claim. Jennifer Keane has written a book – We Can’t Stay Together For The Dogs – that says that there are tests that can determine who the dog likes better.  While this may be persuasive – that is, it may cause the judge to give greater preference to one spouse on the division of the property – it isn’t a legal basis.

In the event you or someone you know are thinking about a divorce, consider what you want to do about your pets.  While there is no standard possession schedule for pets after divorce, a skilled family law attorney can help you navigate the divorce process, weighing the facts that would lead to a favorable outcome.

Marilea W. Lewis is a partner at Duffee + Eitzen.  Board Certified in Family Law, Lewis served on the bench for twenty-four years. She is a mediator of both general and family practice and is qualified to sit as a private judge.