Pets as Personal Property, What Happens in a Divorce?

By: Charla Bradshaw- Managing Shareholder KoonsFuller, P.C.

Pets can provide unbelievable companionship and unconditional love for adults and children. Animals such as dogs, cats, and horses are considered personal property for divorce purposes and unfortunately can also be the subject of domestic violence.

In a divorce, pets must be awarded as part of the property division and therefore will usually go to one spouse or the other. However, spouses can choose to co-own the pet going forward and create a visitation schedule for the pet. We have done these orders and they actually work very well. We also see pet schedules associated with a child’s visitation schedule, where the pet goes with the child. When spouses co-own a pet, going forward, we must provide provisions for the expenses related to the animal. This can be important when dealing with livestock, such as horses, or an animal that has health issues.

Since pets are considered personal property, there can be disputes over whether the pet is the separate property of one of the spouses or community property. Separate property can be acquired by a gift, inheritance, or if the property was owned on the date of marriage. Separate property cannot be divided by the court. Spouses may argue over whether the pet was a “gift”, or whether the spouses bought the pet together, making the pet community property subject to being awarded to one spouse or the other.

The American Academy of Matrimonial Lawyers conducted a poll of 1,500 members, and nearly a quarter said they had noticed an increase in custody issues over pets. Courts have had to determine not only who gets the pet but whether one party has the right to see the pet after the marriage breaks up. Identifying the best interests of the pet in a divorce case can safeguard that the pet is properly cared for after divorce.

Unfortunately, pets are often targets in family violence, but Texas has come to the rescue. Texas courts can now include pets in protective orders in domestic violence cases. Because pets have suffered abuse when family violence has occurred, in 2011, the Texas legislature amended the law to prohibit the removal of animals from the possession of a person named in the protective order. In a protective order, the court may prohibit a party from removing a pet, companion animal, or assistance animal, as defined by Section 121.002 of the Human Resources Code, from the possession or actual or constructive care of a person named in the protective order. The “actual or constructive care” verbiage was added in 2013. In turn, in 2013, the Texas Penal Code was amended to specify what the possession of a pet, companion animal, or assistance animal by a person actually means.

So what do these protective order laws actually mean for pets? They mean that a person subject to a protective order, that violates a pet provision in the protective order, can go to jail, plain and simple. An abuser will often turn on a pet to cause pain and suffering not only to the pet, but to the perpetrator’s victim(s). An abuser may also threaten a pet’s life in order to keep their victim(s) close. As a result, a victim may stay in an abusive situation to keep the companionship of the pet, not realizing the court can make orders with regard to the pet.

One of the problems is that most facilities and shelters for those running from family violence are not equipped to take animals and therefore the animals are left behind. There is a growing need in this regard not only for the safety of the pet but because the unconditional love a pet can give may be lost at the time it is needed the most.

Divorce or abuse can actually take a toll on a pet. The Humane Society of the United States sets forth the following signs of pet stress:

 • They become depressed

• They sleep a lot

• Their appetite lessens

• They’re not interested in their walks or other daily activities

• They start to cry or whimper

• They groom, lick and/or bite themselves excessively

• They have accidents in the home

The bottom line is that pets are often the subject of divorce and family violence, and the laws are improving to protect them. It is important for everyone to be aware of these laws especially so abuse victims may realize the court can include a pet in a protective order. Abuse is bad enough for the lives of those who suffer it, but losing or leaving behind a pet can only make the suffering worse. Victims asking a court for a protective order should ask the court to make orders regarding their pet(s). Additionally, spouses in a divorce should be aware that pet(s) are property. Sadly, a pet may become the subject of a very expensive fight when the real issue is to cause pain to the other spouse.

“We can judge the heart of a man by his treatment of animals”

-Immanuel Kant