Updated: Feb 4, 2020
American pet ownership has climbed consistently over the years. Now, over 68% of Americans own pets, with Millenials owning more than previous generations. However, divorce still occurs for about 40-50% of American marriages, depending on age and other demographics. Deciding who gets the family pet is therefore a critical piece of many divorces.
Traditionally, animals were considered mere personal property of their owners. Now, pets are seen as wholly unique, irreplaceable family members. To treat them any differently is harsh, and ignores the emotional bond shared between the owner and animal. However, only since 2017 have states begun to recognize the needs of pets in a way similar to the needs of children. Illinois, California, and Alaska have all implemented laws that allow judges to consider the pet’s well-being over the wishes of the couple in awarding custody. In fact, these states even allow judges to grant shared custody and ownership of the animal.
Until the Texas legislature creates similar laws, the best way to protect your pet’s interests in the event of a divorce is by creating a “petnup.”
A petnup is an add-on to the traditional prenuptial agreement couples enter into before marriage. A well-crafted petnup can provide peace of mind for both parties by providing a decision on custody of the animal, distribution of assets to provide care for the animal over time, and who will make medical decisions regarding the animal. Pets are not treated like children in Texas, so “joint custody” or a “standard possession order” seen in Illinois, California, or Alaska won’t apply. However, if you and your partner can agree to it, a custom visitation schedule may be arranged.
But why enter a petnup in the first place?
In community property states, like Texas, if the pet was acquired before the marriage, it is the separate property of the person who acquired it, regardless of whether the other party is the primary caregiver or is more strongly bonded to the animal. The law may therefore award the pet to the party who has no interest in caring for it, or is unable to bring it with them when they move out of the marital home. In particularly ugly situations, the pet may even end up at a shelter simply to hurt the other party. Texas law requires no consideration of the animal’s well-being, so unfortunate situations like this are not unlikely in a divorce.
Everyone wants their relationships to work out. But, the future is unpredictable. By planning ahead, you can avoid a worst-case-scenario for not only yourself, but the pet you love so dearly.