Legal Blog- Current Events

WHO GETS THE DOG?

When couples divorce, a common question is what happens to the family pets. Pets have become increasingly important to the American family. Sixty-three percent of American households own pets.[1] In 1994, the American Pet Products Manufacturing Association reported the pet spending economy at $17 billion.[2] A little over a decade later in 2007, the size of the pet economy had risen to $41 billion.[3] Accordingly, if pets have become so important to the American family, then it only makes sense that the issue of "pet custody" is often a hotly contested issue in divorces.

Earlier this year, the American Bar Association Journal reported on a Baltimore judge ordering a divorcing couple to share custody of Lucky, their 16-pound Lhasa apso, much like a judge would order parents to share custody of a child.[4] According to the judge, "It was very clear that both [husband and wife] love this dog equally. The only fair thing to do was to give each one an equal chance to share in the love of the dog."[5] This decision may seem like a logical and fair approach to "custody" of the family pet, particularly for those amongst us who refer to our pets as our "children." However, the judge's actions stood out because under Maryland law an animal is considered property, subject to division upon divorce, not shared custody time.

Maryland law is not the only state law that considers pets as personal property. In fact, throughout the nation, every appellate court that has addressed the issue has held that pets are property, not people, and thus must be awarded to one either the husband or the wife in the divorce.[6] For example, a Florida court of appeals in Bennett v. Bennett,[7] reversed the trial court's decision to give visitation rights of the husband's dog to the wife. The appellate court stated that "several states have given family pets special status within dissolution proceedings," but held that there was no authority for the trial court to award custody or visitation with "personal property."[8] While many commentators argue that courts should consider a type of best-interest criterion used in child custody cases and point to language in trial court opinions acknowledging the special status of pets amongst divorcing couples,[9] these commentators must still concede that no court has yet to treat the family pet as anything but personal property to be awarded upon divorce.[10]

Texas is no different from other jurisdictions. In Texas, an animal is considered personal property.[11] As the court of appeals in Arrington v. Arrington stated, "[a] dog, for all its admirable and unique qualities, is not a human being...A dog is personal property, ownership of which is recognized under the law."[12] Therefore, when going through a divorce in Texas, couples, absent an agreement between the parties, cannot expect for the judge to award to have the authority to award "custody" of the dog to one spouse while granting the other spouse visitation. Rather, at the end of the day at the courthouse, the judge will have to make a decision as to whom the pet will be awarded, and the other spouse will lose all rights to the pet. The fight, therefore, becomes not whether or not the family pet will be awarded to a divorcing party, but to whom the award will be.

The Texas Family Code requires the trial court in a divorce proceeding to "order a division of the estate of the parties in a manner that the court deems just and right."[13] If the pet is considered "community property", the court will order a division of the pet (i.e. award it to one party or another, or, theoretically, although unlikely, ordering the sale of the pet). The trial court has wide discretion in ordering a division of community property of the parties, and may consider many factors.[14] For example, an Iowa court of appeals in confirming the trial court's award of the family dog to the husband noted that the dog remained with the husband when the parties separated, accompanied the husband to his office, and spent a good part of the day with him.[15] It seems logical that factors such as these will be persuasive to a Texas trial court in considering the award of the pet.

However, while the judge will have wide discretion in deciding to whom to award a community property pet, if the pet is one partie's separate property, the trial court is without authority to divest that party of the separate property.[16] A pet may be separate property because it was purchased before marriage, was inherited, or was gifted to that spouse (by the other spouse or by a third party).[17] The pet may also be considered separate property because the pet was purchased with that parties' separate property money.[18] While all property is presumed community, a spouse may rebut this presumption by presenting clear and convincing evidence that the property is separate.[19] Additionally, if the pet was purchased before the marriage, the pet is considered someone's separate property. Thus, a party does not have to prove that it is his or her separate property by clear and convincing evidence, but rather by a preponderance of the evidence.[20] Evidence to be considered in court may be as simple as photographs on the day the pet was given to a spouse or as complex as tracing separate property funds through bank accounts to demonstrate that the pet was purchased with separate property.

In conclusion, the issue of pet "custody" is likely to affect a majority of divorces. The parties are free to agree to whatever arrangement they can imagine. However, if the spouses cannot agree and issue is brought before a judge, the court will award the pet to a party or confirm the pet as a partie's separate property. While making your case for your pet may be a simple process, as often is the case in family law, things can quickly becoming very emotional and very complex, and the people often find themselves in need of an experienced trial lawyer to advocate for their rights.

Piper & Turner, PLLC is composed of trial lawyers who practice solely in the area of family law and handle the most complex matters in family law. Whether you find yourself in a divorce, a modification of a custody arrangement, in the appellate process, or some other family law matter, Piper & Turner, PLLC has experienced lawyers who are ready and able to achieve the best possible outcome for you either in settlement or in the courtroom. If you have questions about the firm or you wish to schedule a consultation, please call 512-472-5060 or visit our "contact us" section and send us an email.

The purpose of this blog is solely to provide a brief snapshot of information available on various family law matters. This blog is not intended to be used as legal advice. To obtain legal advice, please schedule a consultation by calling 512-472-5060 or visiting our "contact us" section and sending us an email.

[1] See Mark J. Penn, Microtrends 107 (2007).

[2] Michael Schaffer, One Nation Under Dog (2009).

[3] Id.

[4] http://www.abajournal.com/news/article/divorced_couple_ordered_to_split_custody_of_family_dog/

[5] Id.

[6] See John DeWitt Gregory, Pet Custody: Distorting Language and the Law, 44 Fam. L.Q. 35, 40-45 (2010).

[7] 655 So. 2D 109 (Fla. Dist. Ct. App. 1995).

[8] Id. at 110.

[9] Eithne Mills & Keith Akers, "Who Gets the Cats...You or Me?" Analyzing Contact and Residence Issues Regardign Pets Upon Divorce or Separation, 36 Fam. L.Q. 283, 283 (2002).

[10] John DeWitt Gregory, Pet Custody: Distorting Language and the Law, 44 Fam. L.Q. 35, 50 (2010).

[11] Arrington v. Arrington, 613 S.W.2d 565, 659 (Tex. Civ. App.-Fort Worth 1981, no writ).

[12] Id. at 569.

[13] Tex. Fam. Code § 7.001.

[14] In re Marriage of Edwards, 79 S.W.3d 88, 96 (Tex. App.-Texarkana 2002, no pet.) ("Section 7.001 gives the trial court broad authority to divide the marital estate in a manner it deems just and right.").

[15] In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984).

[16] See Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977).

[17] Tex. Fam. Code § 3.001. Separate property also includes recovery for personal injuries sustained by as pouse during marriage, except recovery for loss of earning capacity during the marriage. Id.

[18] Ridgell v. Ridgell, 960 S.W.2d 144, 148 (Tex. App.-Corpus Christi 1997, no pet.) ("Property acquired in exchange for separate property becomes the separate property of the spouse"). However, to show that separate property funds were used to purchase the pet, it is most likely necessary to trace the funds. See, generally, Bahr v. Kohr, 980 S.W.2d 723, 728 (Tex. App.-San Antonio 1998, no pet.).

[19] Tex. Fam. Code § 3.003.

[20] Calder v. Calder, 2010 WL 3370766, *3 (Tex. App.--Austin, 2010, no pet.).