A Bone of Contention: Disposition of Family Pets in Divorce

By JASON M. BROOKS

I. Introduction

Pets are a commonplace and integral part of households both throughout the United

States and around the world1. People love their pets, be it for their love, companionship, utility,

loyalty, or even protection2. Many pet owners see their pets less as animals and more as a full-

fledged member of the family unit3. But in the event that a married couple with a pet ends their

relationship, viewing the pet as a member of the family can turn out to be quite problematic4.

The purpose of this piece is to examine the method family courts utilize in dealing with

family pets during divorce proceedings. It will begin with an examination of the current legal

status of pets in Texas and other states of note, and how the legal status of pets operates within

the process of a divorce. Next, it will analyze the statistics of pet ownership, take a deeper look

at owners’ devotion to their pets, and examine how that devotion has strengthened over time.

With that frame of perspective in mind, the problem emerges: the way that families see pets and

the way that courts see pets are diametrically opposed5. Finally, in light of the statistical evidence

showing that this problem is only going to get worse6, this piece will address current solutions

1 See Australians and Their Pets: The Facts, AUSTRALIAN COMPANION ANIMAL COUNCIL, at 2, http://www.acac.org.au/pdf/PetFactBook_June-6.pdf (last visited Nov. 8, 2013) (these figures and statistics make it very clear that many people throughout the western world love their pets – a lot). 2 See e.g. id. at 6; Nahrstedt v. Lakeside Village Condo. Ass’n., 8 Cal.4th 361, 368 (Cal. 1994); Akers v. Sellers, 54 N.E.2d 779, 779 (Ind. App. 1944); Raymond v. Lachmann, 264 A.D.2d 340, 341 (N.Y. App. Div. 1999); Corso v. Crawford Dog and Cat Hosp., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979); Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App.—Fort Worth 1981, no writ) (describing the love owners have for their pets, and the various benefits associated with pet ownership in a general sense).3 See e.g. Strickland v. Medlen, 397 S.W.3d 184, 187 (Tex. 2013); Australians and Their Pets: The Facts, supra note 1, at 2 (somewhere between 70 and 91 percent of pet owners consider their pet to be a member of the family).4 See generally Kristin Tillotson, Dog-Gone Divorce, STAR TRIBUNE, at ¶ 4-10 (Apr. 3, 2012), available at EBSCOhost AN: 2W63396402348 (discussing the pitfalls associated with beloved pets in divorce proceedings).5 Id. at ¶ 2-6.6 Id. at ¶ 2.

and future trends in the area of disposition of pets in divorce proceedings, along with the various

merits and demerits associated with those solutions and trends.

II. Current Legal Status of Pets During Divorce Proceedings

a. Pets as Property

Pets in Texas are classified as personal property, and as such belong to their owner7. The

law recognizes that pets have value to their owners – thus, the owner of a pet is permitted to

bring a civil action for damages resulting from wrongful injury or death inflicted upon a pet by

another person8. In a suit for damages on the wrongful injury or death of a pet, the owner of the

pet is entitled to recover either the pet’s market value or “special value,” which is related to its

usefulness, services, or utility, but only if the owner can prove such “special value.”9 The

measure of damages for the loss of pet must arise from the pet itself, and cannot be extrapolated

from its potential or future progeny10.

There are also limits to the damages that can be recovered for wrongfully injured or

killed pet – a pet owner may not bring a civil action for the loss of a pet when the only damages

sought are for pain and suffering or mental anguish, absent ill will, animus, or desire by the

wrongful party to harm the owner personally11. Pet owners also cannot seek to recover intrinsic

value damages, exemplary damages, counseling expenses, or lost wages resulting from grieving

over the injury or death of the pet12. Thus, while the owner of a pet often has a viable cause of

7 Heiligman v. Rose, 16 S.W. 931, 932 (Tex. 1891); Strickland, 397 S.W.3d at 186; Arrington, 613 S.W.2d at 569; Bueckner v. Hamel, 886 S.W. 2d 368, 370 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 561 (Tex. App.—Austin 2004, no pet.).8 Heiligman, 16 S.W. at 932; Strickland, 397 S.W.3d at 186; Bueckner, 886 S.W. 2d at 370.9 Heiligman, 16 S.W. at 932; Strickland, 397 S.W.3d at 188; Zeid v. Pearce, 953 S.W.2d 368, 369 (Tex. App.—El Paso 1997, no pet.).10 Bueckner, 886 S.W. 2d at 371.11 Zeid, 953 S.W.2d at 369-70; Petco, 144 S.W.3d at 562.12 Petco 144 S.W.3d at 560-63.

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action associated with wrongful injury or death of their pet, their remedies are somewhat

limited13.

Other U.S. states take different approaches, but the underlying legal concepts are very

similar – case law in Florida and Oklahoma indicates that pets are seen purely as personal

property, and that courts will not entertain notions beyond that basic tenet14. Courts in Indiana

and Pennsylvania recognize that pets are property under the law, but acknowledge the special

place that a loyal pet has in the heart of its owner15. Iowa and Ohio both hold pets to be property,

but also acknowledge that the animal’s future well-being is something that may come under

consideration during disposition16. Courts in California have openly acknowledged the special

status owners accord their pets, but nonetheless hold pets to be the personal property of their

owner17. New York courts also apply general property law concepts to pets18 but are somewhat of

an outlier in regard to status, having gone so far as to state that pets occupy “a special place

somewhere in between a person and a piece of personal property.”19

b. The Divorce Process

Texas uses what is known as a “community” marital property system for handling the

disposition of assets during divorce proceedings20. All assets owned by the parties to the divorce

are characterized as part of the “community estate” (assets acquired after marriage that must be 13 Zeid, 953 S.W.2d at 369-70; Petco, 144 S.W.3d at 562.14 See e.g. Bennett v. Bennett, 655 So.2d 109, 110 (Fla. Dist. Ct. App. 1995); Helsel v. Fletcher, 225 P. 514, 515 (Okla. 1924) (both courts held that pets are personal property and nothing more).15 See e.g. Akers, 54 N.E.2d at 779; Desanctis v. Pritchard, 803 A.2d 230, 232 (Pa. Super. Ct. 2002) (both courts recognize the comfort derived from the companionship and loyalty of a loved pet and the heightened status owners accord their pets, but nonetheless hold pets to be personal property).16 See e.g. In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984); Green v. Shall, 2004-Ohio-1653, 2004 WL 628649, at *3 (Ohio Ct. App. 2004) (courts disposed of the pets in both cases by awarding them to the party that adopted them, raised them, trained them, acted as their companion, and provided them with care).17 See Nahrstedt, 8 Cal.4th at 368; Ballas v. Ballas, 3 Cal.Rptr. 11, 12-13 (Cal. Dist. Ct. App. 1960) (recognizing the high status owners award their pets and the benefits of pet ownership on their human companions, but nonetheless finding pets to be property).18 Leconte v. Kyungmi Lee, 935 N.Y.S.2d 842, 843-44 (N.Y. Civ. Ct. 2011).19 Corso, 415 N.Y.S.2d at 183.20 TEX. CONST. art XVI, § 15; TEX. FAM. CODE ANN. §§ 3.001, 3.002 (West 1997); Hilley v. Hilley, 342 S.W.2d 565, 567-68 (Tex. 1961).

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equitably distributed between the parties to the divorce)21, or as part of one of the two “separate

estates” (assets each party to the divorce owned before marriage or acquired during marriage

through specific methods which maintain separate property status)22. All property or income

acquired during the marriage is presumed to be part of the community estate, and a party

asserting that an asset or piece of property belongs to their own separate estate has the burden of

proving it by clear and convincing evidence23. If a piece of property is characterized as separate

property, courts have no jurisdiction to divest the owner of it, and doing so constitutes reversible

error24. Once all separate property has been set aside and only the community estate remains, the

court must make a “just and right” division of it25. The court has a wide level of discretion in

determining what is “just and right” and may consider various factors and circumstances in

making the division26. Challenging a court’s division of the community estate is a daunting

process, as division of the community estate is solely within the province of the trial judge27 and

the standard of review is abuse discretion, meaning that reversal will only occur if the trial judge

abused his discretion or committed clear error of law28.

Additionally, the disposition of property in divorce can be influenced (or outright

controlled by) by written agreement or contract, which may be created and agreed to at any point

prior to the divorce decree being finalized29. These agreements can take many forms, including

pre- or post-marital agreements, contracts for consideration, property settlement agreements, and

mediated settlement agreements30. Texas tends to favor enforcement of such agreements if they

21 TEX. FAM. CODE ANN. § 3.002 (West 1997); De Blane v. Hugh Lynch & Co., 23 Tex. 25, 29 (1859).22 TEX. CONST. art XVI, § 15; TEX. FAM. CODE ANN. § 3.001 (West 1997).23 Id. § 3.003 (West 1997).24 Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140-41 (Tex. 1977).25 TEX. FAM. CODE ANN. § 7.001 (West 1997).26 Id.; Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).27 McKnight v. McKnight, 543. S.W.2d 863, 866 (Tex. 1976).28 McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.—Houston [1st Dist.] 1995, writ denied).29 TEX. FAM. CODE ANN. §§ 4.001-4.010, 4.101-4.106 (West 1997).30 TEX. FAM. CODE ANN. §§ 4.001-4.010, 4.101-4.106 (West 1997).

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are in writing, signed by the parties to be bound, and there is no inherent illegality, fraud,

misrepresentation, coercion, duress, or unconscionability underlying the agreement31. Texas

courts may also enforce implied and oral agreements if the party arguing for enforcement can

prove the existence of the agreement, usually through partnership or contract law concepts32.

Thus, in Texas, the analysis for pets in divorce proceedings appears to be relatively

simple: in the event of a divorce, pets are property to be characterized and disposed of in

accordance with applicable statute33. If the pet was acquired prior to marriage, it will be held to

be separate property of the party who acquired it, and the court cannot divest that party of it34. If

the pet was acquired during the marriage, it will be presumed community property, and the party

seeking to prove that the pet is their separate property has the burden of proof and must meet that

burden by clear and convincing evidence35. If there is an enforceable written agreement or

contract in existence that provides for how the pet should be handled during divorce, the court is

likely to give it effect, assuming there is no underlying impropriety36. If there is an oral or

implied agreement, the court may enforce it, depending on the specific facts and circumstances

of the case and the proof put on by the party arguing for enforcement.37

Other U.S. states – including those that are not “community property” states – essentially

follow the same basic pattern: examine the past and current circumstances of the divorcing

31 Id. §§ 4.006, 4.105.32 E.g. Hayworth v. Williams, 116 S.W. 43, 45-46 (Tex. 1909); Harrington v. Harrington, 742 S.W.2d 722, 723-25 (Tex. App.—Houston [1st Dist.] 1987, no writ); Eithne Mills & Keith Akers, “Who Gets the Cats … You or Me?” Analysing Contact and Resident Issues Regarding Pets upon Divorce or Separation¸ 36 FAM. L.Q. 283, 288-89 (2002-2003).33 See Arrington, 613 S.W.2d at 569-70 (family dog held to be personal property to be disposed of in divorce).34 Eggemeyer, 554 S.W.2d at 140-41.35 TEX. FAM. CODE ANN. § 3.003 (West 1997).36 Id. §§ 4.006, 4.105 (West 1997).37 E.g. Hayworth, 116 S.W. at 45-46; Harrington, 742 S.W.2d at 723-25; Mills & Akers, supra note 32, at 288-89.

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couple, apply statute, and award property respectively, with courts having an extremely wide

amount of discretion in deciding which party is to be awarded the family pet38.

III. Pet Ownership and Devotion, By the Numbers

As of the year 2010, there are an estimated 144 million dogs and cats kept as pets in the

United States, and roughly 63 percent of U.S. households have at least one dog or cat39. Total

U.S. expenditures on pets in 2012 were in excess of $53 billion40. The 2010 U.S. Census,

corroborated by the Centers for Disease Control, estimates that there are roughly 308.7 million

citizens in the country, that there are approximately 2 million marriages performed in the U.S.

every year, that approximately 51 percent of all adults are currently married, and that the

approximate divorce rate was 53 percent41. A British study found that despite their own

substantially lower rate of pet ownership (43 percent, as compared to 63 percent in both the US

and Australia), 39 percent of dog owners stated that they would be willing to litigate to get

custody of their pet in the event of a relationship breakdown42. Based on these numbers, it can be

reasonably extrapolated that there are at least 270,000 individuals in the United States who could

potentially litigate in an attempt to get custody of the pet in the event of a divorce or relationship

termination in a given year43.

38 See e.g. Juelfs v. Gough, 41 P.3d 593, 597 (Ala. 2002); Bolan v. Bolan, 796 S.W.2d 358, 362 (Ark. Ct. App. 1990); Akers, 54 N.E.2d at 662; Stewart, 356 N.W.2d at 613; Raymond, 264 A.D.2d at 341; Conahan-Baltzelle v. Baltzelle, 2004 WL 1959486, at *3 (Va. Ct. App. 2004); Hodo v. Hodo, 2004 WL 136093, at *2 (Va. Ct. App. 2004) (courts in non-community property states disposing of the family pet using principles of indicia of ownership and equitable distribution to determine which party should be awarded the pet).39 Australians and Their Pets: The Facts, supra note 1, at 2.40 Strickland, 397 S.W.3d at 188.41 Population Distribution and Change: 2000 to 2010, UNITED STATES CENSUS BUREAU, at 1 (Mar. 2011), http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf; FastStats: Marriage and Divorce, CENTERS FOR DISEASE CONTROL AND PREVENTION, http://www.cdc.gov/nchs/fastats/divorce.htm (last updated Apr. 24, 2013).42 Tony Bogdanoski, The Marriage of Family Law and Animal Rights: How should Australian family law approach the rise of ‘pet custody’ disputes?, 31 ALTERNATIVE L.J. 216, 216 (2006); Divorce Dogs Our Pets, NORTHERN TERRITORY NEWS, at ¶ 4 (Sept. 18, 2005), available at EBSCOhost AN: 200509181005076409.43 See generally FastStats: Marriage and Divorce, supra note 41; Australians and Their Pets: The Facts, supra note 1, at 2; Divorce Dogs Our Pets, supra note 42, at ¶ 4 (~2,100,000 annual marriages * ~53% divorce rate = ~1,113,000 annual divorces * ~63% rate of pet ownership = ~701,000 divorces potentially involving a pet * ~39% willing to litigate over pet custody = ~273,000 potential instances of litigation over custody of a pet).

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Other figures and statistics further demonstrate the high level of devotion that the

majority of pet owners have to their pets, viewing them as full-fledged members of the family –

an Australian study found that 91 percent of pet owners reported feeling “very close” to their pet,

and that the pet was an integral part of the family unit44. Approximately 45 percent of dog

owners stated that they take their pets on vacation with them45. Another survey indicated that

more than half of pet-owning respondents stated that they would prefer a dog or cat to a human if

they were stranded on a desert island46. During the holiday season, approximately 80 percent of

pet owners stated that they buy their pets gifts47. If forced to make a choice between saving the

life of a foreign stranger and the life of their pet, 40 percent of men and 45 percent of women

surveyed reported that they would save their pet48, with half of those respondents justifying their

choice to save their pets life over that of the foreign stranger’s by stating only “I love my pet” or

“the pet is a part of my family.”49 Approximately 18 percent of survey respondents stated that

when faced with the death of their pet, they were so incapacitated by grief that they were unable

to function in their daily lives, much as if they had lost a spouse, family member, or close

friend50. Owners have been known to arrange for elaborate funerals for their pets, even attended

by other family members, to grieve for the loss of the animal51. Conversely, owners have also

been known to leave constructive trusts for the ongoing care and support of their pets following

44 Australians and Their Pets: The Facts, supra note 1, at 2.45 Strickland, 397 S.W.3d at 187-88.46 E.g. id. at 188; Albert Momjian, What The General Practitioner Needs to Know About Pennsylvania Animal Law: Pets In Divorce, 77 PA. B. ASS’N. Q. 77, 77 (2006).47 Heidi Stroh, Puppy Love: Providing for the Legal Protection of Animals When Their Owners Get Divorced, 2 J. ANIMAL L. & ETHICS 231, 239 (2007).48 Stanley Coren, Ph.D., Is a Dog’s Life Worth More Than a Person’s?, PSYCHOLOGY TODAY, at ¶ 6-8 (Aug. 27, 2013), http://www.psychologytoday.com/blog/canine-corner/201308/is-dogs-life-worth-more-persons; Amanda Scherker, Many People Would Save Their Dog Over Foreign Tourist, Study Says, HUFFINGTON POST, at ¶ 2-3 (Aug. 19, 2013), http://www.huffingtonpost.com/2013/08/19/save-dog-foreign-tourist-stranger-study_n_3781329.html.49 Id.50 Stroh, supra note 47, at 243.51 Corso, 415 N.Y.S.2d at 183.

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their own deaths52. Studies appear to indicate such high levels of devotion to the family pet is

more common in households that do not have children, with the pet supplementing the role of a

child in the family unit53. When Australian respondents were asked to rank the difficulty they

would have in dividing marital assets, they ranked pets as less important than real property and

money, but more important than automobiles, boats, or household furniture54.

On the whole, these figures and statistics regarding pet ownership and devotion are

trending upward over time – a 2006 survey of the American Academy of Matrimonial Lawyers

found that nearly 25 percent of members reported noticing an increase in contentious litigation

involving pets55, and that in such cases, dogs were at issue 90 percent of the time, cats 5 percent

of the time, and all other animals comprising the remaining 5 percent56.

IV. The Looming Problem of Disposition of Pets During Divorce Proceedings

Taking all of the above information into account, the looming problem of disposition of

pets during divorce proceedings becomes apparent: in stark contrast to the high status accorded

to pets by their owners, courts generally see pets purely as personal property, to be awarded to

one party or the other in the event of a divorce57. As this high level of devotion to pets continues

to become the cultural norm, this could become a serious legal problem that could take up a

massive amount of family court time, money, and resources to resolve58.

52 In re Searight’s Estate, 95 N.E.2d 779, 780 (Ohio App. 1950).53 E.g. Mills & Akers, supra note 32, at 285; Tillotson, supra note 4, at ¶ 26.54 Divorce Fights for Pets, HERALD SUN, at ¶ 8 (July 6, 2013), available at EBSCOhost AN: 201307062009557383.55 E.g. Bogdanoski, supra note 42, at 216; Tillotson, supra note 4, at ¶ 2.56 E.g. Bogdanoski, supra note 42, at 216-17.; Tillotson, supra note 4 at ¶ 16.57 See generally e.g. Juelfs, 41 P.3d at 597; Bolan v. Bolan, 796 S.W.2d 358, 362 (Ark. Ct. App. 1990); Akers, 54 N.E.2d at 662; Stewart, 356 N.W.2d at 613; Green, 2004 WL 628649, at *3; Desanctis, 803 A.2d at 232-33; Arrington, 613 S.W.2d at 569-70; Conahan-Baltzelle, 2004 WL 1959486 at *3 (Va. Ct. App. 2004) (national sampling of cases holding pets to be personal property to be disposed of in divorce proceedings).58 See Bennett, 655 So.2d at 110-11 (court discussing time and expense associated with litigation over pets).

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In particularly ugly divorces, pets – much like children – might be utilized as

psychological weapons, bargaining chips, or tools of revenge59. Parties to divorces have been

known to commit “petnapping” – running away with or hiding the pet somewhere secret so that

the other cannot get physical possession of the animal, even risking being held in contempt of

court for doing so60. One party might encourage the pet to participate in bad habits and

misbehavior simply to frustrate the other61. If the pet was used for breeding purposes, the party in

possession of the pet may have it spayed or neutered without informing the other spouse62. Some

highly devoted parties are willing to pay an extremely high price to get custody of the pet –

sometimes as much as $15,000 or $20,000 – regardless of the pet’s health, age, or market value63.

Parties insist on the creation, implementation, and judicial enforcement of pet custody and

visitation agreements, and are willing to seek sanctions against the other party for failure to

comply64. In a worst-case scenario, an extraordinarily vengeful, cruel, and abusive party might

abuse, “lose,” or even kill the pet, which has resulted in a handful of states taking findings of

domestic violence into account when making a disposition of the pet in divorce65.

Also similar to children, divorce proceedings can frequently cause pets great levels of

emotional distress66. Pets are in tune with the emotional state of the household, and need to be

59 E.g. Tillotson, supra note 4, at ¶ 6-10, 19; Dru Wilson, Pets Frequently Part of Divorce Battles, THE GAZETTE, at ¶ 24-25 (Jan. 8, 2002), available at EBSCOhost AN: 2W70421923968.60 Wilson, supra note 59, at ¶ 8.61 Id. at 24-25.62 Tillotson, supra note 4, at 10.63 Id. at 6, 8.64 See e.g. Bennett, 655 So.2d at 110; In the Matter of the Marriage of Tevis-Bleich, 939 P.2d 966, 967-68 (Kan. Ct. App. 1997); Desanctis, 803 A.2d at 231-32; Arrington, 613 S.W.2d at 569-70; (cases in which one party brought suit against the other for enforcement of an agreement regarding custody and visitation of the family pet.).65 E.g. Momjian, supra note 46, at 79; Pam Belluck, Battered Wives’ Pets Suffer Abuse, Too, THE NEW YORK TIMES, ¶ 2-7, 11-15, 18-19 (Apr. 1, 2006), http://query.nytimes.com/gst/fullpage.html?res=9F04E1D91230F932A35757C0A9609C8B63.66 Tom Kelly, Pets Feel the Fallout of Divorce, THE COURIER MAIL, ¶ 1-2, 5 (Feb. 24, 2005), available at EBSCOhost AN: 200502241009132047; Pets Can’t Master Stress of Divorce, MX, ¶ 1-2, 8-9, 12 (Feb. 23, 2005), available at EBSCOhost AN: 200502231010569016; Wilson, supra note 59, at ¶ 21-23.

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given care, love, attention; they yearn for a sense of normalcy and well-being in their routine 67.

This routine can become severely disrupted during divorce, placing great stress on the pet and

negatively impacting its long-term behavior and health68. Pets may develop “master separation

syndrome” – animals so afflicted have been known to refuse to eat, engage in anti-social and

destructive behavior, or even commit acts of even self-harm (it’s next to impossible to imagine

any other piece of personal property that becomes so upset over family discord that it undertakes

self-harming behavior)69. Following dissolution of the relationship, neither party may want to

keep the pet, resulting in it being given to a shelter, which is also highly stressful70. Sadly, reports

by the RSPCA in Australia and the United Kingdom have shown that the number of pets being

dropped off at shelters under such circumstances is rising, with more than 60 percent of those

dogs and more than 40 percent of those cats facing uncertain futures71.

It’s also worth considering the interrelated effect of divorce on both pets and children of

the marriage72. Children want to be with the family pet, as they provide each other with

companionship, comfort, and a sense of normalcy73. Courts may wish take this bond between the

child and the pet into account when deciding which party to the divorce should be awarded the

pet, as it may be in the child’s best interests for the child and pet to remain together74.

67 E.g. Wilson, supra note 59, at ¶ 26-28; Kelly, supra, note 66, at ¶ 9; Pets Can’t Master Stress of Divorce, supra note 66, at ¶ 13.68 E.g. Wilson, supra note 59, at ¶ 21-23; Kelly, supra, note 66, at ¶ 5; Pets Can’t Master Stress of Divorce, supra note 66, at ¶ 8-9, 12.69 E.g. Wilson, supra note 59, at ¶ 23; Kelly, supra, note 66, at ¶ 2-4; Pets Can’t Master Stress of Divorce, supra note 66, at ¶ 3-7. 70 Nicolette Burke, Pets Left to Pick Up the Pieces After Divorce, THE DAILY TELEGRAPH, ¶ 2-3 (July 14, 2002), available at EBSCOhost AN: 200207171025661320; John Elliott & Mark Ludlow, Rising Tide of Divorce Rains Cats and Dogs on Animal Shelters, THE SUNDAY TIMES, ¶ 1-3, 6-8 (Oct. 5, 2003), available at EBSCOhost AN: 7EH1713954588.71 Elliott & Ludlow, supra note 70, at ¶ 1-3.72 See Belluck, supra note 65, at ¶ 16-17 (discussing the risk of physical harm children will place themselves in to protect the family pet from harm or abuse).73 See generally id. (suggesting that children are willing to place themselves at such risk because of their attachment, love, and devotion to the family pet).74 See Hodo, 2004 WL 136093 at *2 (court granted custody of child to wife and also awarded family dog Grunt to wife on the grounds that the pet should be together with the child).

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V. Current Solutions

a. Private Agreement

Generally speaking, private agreements between individuals are a very powerful legal

tool and are usually enforceable75, though ultimately enforcement varies state to state depending

on the relationship of the parties, the subject matter of the agreement, the manner in which the

agreement was made, and the underlying facts and circumstances of the agreement itself76.

In Texas, an express agreement made between either married or unmarried couples,

signed by the parties to be bound, and without any underlying fraud, misrepresentation, duress,

coercion, unconscionability, or illegality is very likely to be enforced by a court77. There is also

some chance that the court will enforce an oral or implied agreement, if the party arguing for

enforcement has some sort of proof of the agreement’s existence, usually on the basis of

partnership or contract law78. Many other states – Minnesota and New York are prime examples

– have similar rules79. Furthermore, as a result of the holding in Marvin v. Marvin, California and

many other states also recognize enforceable property rights by agreement between cohabitating

unmarried couples, including express and implied agreements, and even allow for equitable

remedies such as unjust enrichment and constructive or resulting trusts80.

However, this is not to say that judicial enforcement of an agreement – even if the

agreement is written and signed by both parties – is guaranteed81. A prime example of this is the

Alaska case of Juelfs v. Gough, where the parties had an agreement for visitation of their dog

75 TEX. FAM. CODE ANN. §§ 4.001-4.010, 4.101-4.106 (West 1997).76 See e.g. Bennett, 655 So.2d at 110-11; Desanctis, 803 A.2d at 232-33 (courts did not enforce agreements based on subject matter, holding that visitation, custody, and support for pets is improper because pets are property).77 TEX. FAM. CODE ANN. §§ 4.006, 4.105 (West 1997).78 See e.g. Hayworth, 116 S.W. at 45-46; Harrington, 742 S.W.2d at 723-25; Mills & Akers, supra note 32, at 288-89 (standing for the proposition that oral or implied agreements might be enforced, if supported by strong evidence).79 See e.g. MINN. STAT. §§ 513.075, 513.076 (2013); Silver v. Starrett, 674 N.Y.S.2d 915, 921 (N.Y. Gen. Term. 1998) (permitting creation and enforcement of agreements between unmarried couples).80 Marvin v. Marvin, 557 P.2d 106, 110 (Cal. 1976).81 See e.g. Juelfs, 41 P.3d at 596-97 (Ala. 2002); Bennett, 655 So.2d at 110-11; Desanctis, 54 N.E.2d at 232-33. (all cases where the court refused to enforce written agreements regarding the family pet).

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Coho, but the parties were constantly fighting and completely unable to cooperate82. Expressing

disappointment and frustration with the parties, the court modified the ruling so that the dog was

awarded exclusively to the husband83. In rationalizing its decision, the court stated that a

visitation schedule for Coho was contingent on the parties getting along, and that if they could

not get along, there was no point to the agreement at all84. Additionally, the court found that

Coho’s well-being was better served in the exclusive possession of the husband because the

wife’s other two dogs had previously attacked and threatened Coho, and the wife’s new

boyfriend had injured Coho while attempting to separate the fighting animals85.

Another example of Courts refusing to enforce an agreement would be the Florida case of

Bennett v. Bennett, in which the trial court ordered that the husband permit the wife time to visit

with their dog Roddy86. The husband refused to comply, so in response the wife sought

enforcement of the judgment87. Ultimately, the husband prevailed – it was held that the wife had

no right to visit the dog, and that the trial court’s order for visitation was unenforceable88. The

court explained that under Florida law, pets are personal property, and the trial court lacked any

statutory authority to grant custody or visitation in regard to personal property89.

This same rationale was also employed in the Pennsylvania case of Desanctis v.

Prichard, where court ultimately held that the family dog Barney and his social schedule

belonged exclusively to the wife, irrespective of the parties’ custody and visitation agreement90.

The court stated that pets are property under Pennsylvania state law, and that any terms in the

82 Juelfs, 41 P.3d at 597.83 Id.84 Id.85 Id. at 595.86 Bennett, 655 So.2d at 109-10.87 Id.88 Id.89 Id.90 Desanctis, 803 A.2d at 232-33.

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agreement related to custody or visitation of personal property were void, analogizing custody

and visitation for Barney to “custody and visitation for a table or lamp.” 91

There is also the unusual case of when the agreement itself is enforceable, but cannot be

later modified or terminated because of clauses contained within it92. This is best exemplified by

the Kansas case of In the Matter of the Marriage of Tevis-Bleich, where the parties had an

enforceable agreement regarding custody and visitation of their dog Cartier93. The wife, who had

possession of Cartier, motioned to terminate the agreement94. The trial court held that because

the agreement contained a clause stating that no modification or termination of the agreement

was permitted, the court had no authority or jurisdiction to modify or terminate the agreement,

leaving it in effect and enforceable95.

b. No Private Agreement

Without any sort of private agreement stipulating the terms and conditions of disposition

of the family pet upon divorce or separation, courts have wide latitude in making a disposition

and may take various factors and circumstances into account in making their ultimate

determination96. Because of the high level of discretion courts have in determining which party to

the divorce should receive the pet, results in contentious cases can be very hard to predict97.

i. Ownership of the Pet

One of the most simple determinations a court can make in regard to pets is that because

pets are considered personal property, they should be awarded to the party that “owns” it98. The

91 Id.92 Tevis-Bleich, 939 P.2d at 969.93 Id. at 967-69.94 Id.95 Id.96 See TEX. FAM. CODE ANN. § 7.001 (West 1997); Murff, 615 S.W.2d at 698 (courts have a vast amount of discretion in effecting a “just and right” division of the marital estate and may take various factors into account).97 Id.98 See e.g. Ballas, 3 Cal.Rptr. at 12-13; Akers, 54 N.E.2d at 661-62; Leconte, 935 N.Y.S.2d at 843-44 (cases in which disposition of the pet was determined primarily based on various indicia of ownership).

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court may determine “ownership” from examination of various indicia, such as legal title of the

animal under applicable law; who initially purchased, adopted, or rescued the animal; who

registered the animal with regulatory organizations; who pays for food, grooming, and medical

care for the animal; and who possesses and cares for the animal before, during, and after

separation99.

This method of determination is exemplified by the California case of Ballas v. Ballas,

where the wife was awarded the family dog because the court determined that she was the legal

owner of it100. The court concluded that the wife owned the dog because she purchased it solely

using her own personal funds, registered the dog in her name, that at the time of trial (more than

a year after separation) the dog was still registered in her name and she still had possession of the

animal, and that the husband provided no evidence contradicting or refuting the wife’s claims101.

The New York case of Leconte v. Kyungmi Lee also demonstrates this principle102. In

Leconte, a recently separated unmarried couple was arguing over ownership and possession of

their dog Bubkas, which the boyfriend had received as a gift from his parents while the couple

was living together103. The boyfriend asserted that the dog was exclusively his, and that the

girlfriend took possession of the dog without his permission104. The girlfriend argued that the

boyfriend relinquished care and control over Bubkas over the course of their relationship, and

that it was in the best interests of the dog to be awarded to her because her boyfriend was

keeping the dog in a crate for long periods of time while away from home105. The court held that

the boyfriend did not relinquish care or control over Bubkas as a matter of law, and that the

99 See Ballas, 3 Cal.Rptr. at 12-13 (factors the court considered before determining the wife owned the family pet).100 Id. at 12-13.101 Id.102 See Leconte, 935 N.Y.S.2d at 844 (court held that the boyfriend owned the pet and the girlfriend had no claim).103 Leconte, 935 N.Y.S.2d at 844.104 Id. at 843.105 Id.

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dog’s health was not in any way shown to be negatively impacted by crating, rendering the

girlfriend’s arguments related to the dog’s best interests meritless106.

The Indiana case of Akers v. Sellers (one of the oldest cases dealing with a couple

quarrelling over the family pet) also resulted in the court awarding the pet based primarily on

ownership107. The court held that “there is no reason shown why possession should not

accompany ownership” and therefore awarded the family dog to the wife108, but in doing so

cautioned against completely mechanical dispositions using the “brutal and unfeeling basis of

legal title,” suggesting that such an analysis could potentially produce unjust results109.

One last case in which the court made a disposition determination based primarily on

indicia of ownership – and a case which shows how difficult it can be to achieve reversal on

appeal – is the Iowa case of In re Marriage of Stewart, where the husband was awarded the

family dog Georgetta in the divorce, and the wife appealed the trial court’s decision110. The wife

argued that Georgetta was her property because the husband gave it to her as a Christmas gift111.

The husband argued that the trial court did not abuse its discretion or commit clear legal error in

awarding him the pet, because the dog remained in his possession following separation,

accompanied him to his veterinary practice daily, and spent a “substantial portion” of each day at

his side112. The appeals court affirmed the trial court’s ruling, finding that the trial court did not

commit an abuse of discretion or clear legal error in awarding the Georgetta to the husband113.

ii. If Two or More Pets, Split Them Between Parties

106 Id. at 844.107 Akers, 54 N.E.2d at 77-80.108 Id.109 Id.110 Stewart, 35 N.W.2d at 613.111 Id.112 Stewart, 35 N.W.2d at 613.113 Id.

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While not a determination used when there is only a single family pet in dispute, another

relatively simple route for courts to take in awarding pets to parties is to split the pets up between

the parties, if doing so is possible114. This method of division is demonstrated in the Arkansas

case of Bolan v. Bolan, where the trial court judge settled the dispute over the family pets by

awarding the cat to the wife and the dog to the husband115. The wife appealed, claiming that the

trial court abused its discretion or committed clear error in making that determination116. The

appeals court affirmed the trial court, finding that awarding each party a pet was not clearly

erroneous117. This method of evenly dividing multiple pets between the parties has also been

done with animals such as ornate birds – the court will make an effort to split the pets between

the parties as evenly as possible, even accounting for species118.

iii. If Children, Pet Goes with Child as the Family Pet

If there are children of the marriage, another possible determination that a court could

make would be to assess the best interests of the child and the disposition of the pet in tandem 119.

As previously discussed, children and pets often rely on one another for companionship and

comfort in the event of an ugly divorce, as it helps them both to maintain some normalcy in their

lives despite ongoing family upheaval and discord120. This is best exemplified in the case of

114 See Bolan, 796 S.W.2d at 362 (divorcing couple had one dog and one cat – trial court awarded dog to husband and cat to wife – the wife appealed citing abuse of discretion/clear legal error – appellate court affirmed).115 Id.116 Id.117 Id. 118 See Tillotson, supra note 4, at ¶ 16-17 (“we had to divide them in half, by bird type, to make sure everything was equal”).119 See Hodo, 2004 WL 136093 at *2 (court awarded dog to wife so that child and dog could remain together).120 See e.g. id.; Belluck, supra note 65, at ¶ 16-17; Wilson, supra note 59, at ¶ 7 (describing a child’s devotion, love, and attachment to the family pet and suggesting that keeping the child and pet together is ideal).

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Hodo v. Hodo, a Virginia case in which the trial court awarded the family dog Grunt to the wife,

because the court felt it was “appropriate that the dog went with the child as the family pet.” 121

The husband appealed, arguing that the dog was his separate property because it was a gift from

a third party122. The appellate court affirmed the trial court’s ruling, finding that there was no

clear error in determining that Grunt should go with the child as the family pet, and that even if

the dog was in fact the husband’s separate property given as a gift by a third party, he failed to

preserve that contention on the record for the purpose of appeal123.

VI. Trending Future Solutions

a. Best Interests of the Pet

This is a concept that has been spoken of before by courts, but has never actually been

invoked or implemented124. The basic idea behind it is that animals are creatures that have

emotions, wants, and needs, and so courts should strive, much as they already do with children,

to make a disposition determination that takes into account what is in the best long-term interests

of the animal itself rather than in the interests of the parties to the divorce125.

A Texas case on this point is Arrington v. Arrington, in which the parties were fighting

over Bonnie Lou, the family dog126. The trial court initially granted possession of Bonnie Lou to

the wife and named her “managing conservator.”127 The husband appealed, arguing that he too

should have been appointed “managing conservator” and that the trial court’s failure to so name

him was in error128. The appellate court affirmed the trial court, holding that while the title

121 Hodo, 2004 WL 136093 at *2.122 Id.123 Id.124 See e.g. Akers, 54 N.E.2d at 779; Raymond, 264 A.D.2d at 341; Leconte, 935 N.Y.S.2d at 844; Stewart, 356 N.W.2d at 613; Arrington, 613 S.W.2d at 569 (all cases containing vague references to the general concept underlying ‘best interests of the pet’ but not specifically invoked or applied at any point).125 Mills & Akers, supra note 32, at 301.126 Arrington, 613 S.W.2d at 566.127 Id.128 Id. at 569.

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“managing conservator” was “made for the benefit human children, not canine” there was still no

error made by the trial court129. Also very telling is the appellate court’s statement that it hoped

“…that both Arringtons will continue to enjoy the companionship of Bonnie Lou for years to

come … We are sure that there is enough love in that little canine heart to ‘go around’. Love is

not a commodity that can be bought and sold or decreed.”130 This statement seems to stand for

the concept that the loyalty-and-companionship relationship between humans and pets is a two

way street, and that parties and courts should see to it that as much positivity comes out of the

disposition finding as possible for the parties to the divorce and pet alike.

Similarly, in the New York case Raymond v. Lachmann, the plaintiff brought a claim and

a motion for sanctions against the respondent for failure to give up possession of the family cat

Lovey in accordance with the trial court’s order131. The defendant party appealed, and

prevailed132. The court held that it thought “best for all concerned that, given his limited life

expectancy, Lovey … remain in where he has lived, prospered, loved and been loved for the past

4 years.”133 The court also stated that it was “cognizant of the cherished status accorded to pets in

our society, the strong emotions engendered by disputes of this nature, and the limited ability of

courts to resolve them satisfactorily.”134 This holding could be taken to insinuate that in some

circumstances (such as here, where the animal is older), the best interests of the pet may be

worth considering in making the disposition135.

Another good example of this in practice is the Ohio case of Green v. Shall, which

involved the wife appealing from the trial court judgment awarding the husband their two

129 Id. at 569-70.130 Id. at 569.131 Raymond, 264 A.D.2d at 340.132 Id. at 341.133 Raymond, 264 A.D.2d at 341.134 Id.135 See id.

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dogs136. The wife argued that the trial court abused its discretion in ignoring evidence favorable

to her while focusing on evidence favorable to the husband137. The trial court had found that the

evidence supported the dogs being awarded to the husband because the husband was the legal

owner of the dogs, had trained them, was primarily responsible for all of their expenses, and that

both dogs had always lived in the barn on the husband’s property where they had ample space to

run and were visited by a caretaker daily138. The appeals court affirmed, finding there was no

abuse of discretion by the trial court in awarding the dogs to the husband139. Note that while the

trial court relied exclusively on indicia of ownership in making the disposition, there is

nonetheless a hint of ‘best interests of the pet’ at work – the dogs were to be kept where they had

grown up, had room to run and play, and were regularly provided care140.

Other cases also briefly touch on themes related to best interests of the pet141. In Akers v.

Sellers, the court stated that there may be circumstances in which the “brutal and unfeeling basis

of legal title” might result in a “tragedy” if in fact the pet’s “love, affection and loyalty” are for

the other party to the divorce142. This phrasing could be taken to mean that if the pet has a

preference for one party over the other, that party of preference maybe should be the one

awarded the pet143. In Corso v. Crawford Dog and Cat Hospital, the court stated that unlike

inanimate objects, pet are capable of returning love and affection rather than just receiving it and

that it would be a “repudiation of our humaneness” to hold pets are purely personal property and

nothing more144. This language seems to stand for the proposition that it may be unfeasible to

136 Green, 2004 WL 628649, at *3. 137 Id.138 Id.139 Id.140 See id. 141 See e.g. Juelfs, 41 P.3d at 595; Akers, 54 N.E.2d at 779; Corso, 415 N.Y.S. at 183; Arrington, 613 S.W.2d at 569-70 (all cases in which the courts acknowledge, mention, or reference the special relationship between pets and human beings, insinuating that perhaps pets should be considered as more than just property).142 Akers, 54 N.E.2d at 779.143 See id.144 Corso, 415 N.Y.S. at 183.

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view animals exclusively through the lens of property law145. Lastly, in Juelfs v. Gough, the court

apparently gave at least some consideration to the well-being of the animal in deciding to award

the family dog to the husband, as the dog’s health and safety were threatened by the wife’s new

boyfriend and her two aggressive dogs146.

b. Pushback against the Trend

There are unfortunately some serious problems with this hypothetical “best interests of

the pet” standard, the most serious being that family courts would have to dedicate far more time,

money, and resources to litigation on the “best interests” issue147. The family court system is

overloaded as it is, and given the previously-discussed statistics regarding pet ownership, it could

grind the family court system to a halt148. The court in Bennett v. Bennett even went so far as to

explicitly address the issue of limited time and resources as the main rationale for refusing to

accord higher status to family pets149, stating that “Determinations as to custody and visitation

lead to continuing enforcement and supervision problems (as evidenced by the proceedings in

the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and

support matters related to the protection of our children. We cannot undertake the same

responsibility as to animals.”150

VII. Conclusion

While major reforms related to the disposition of pets in divorce proceedings might occur

at some point in the future as a result of shifting cultural norms, the law in the state of Texas is

well-settled at this time. Currently, wise Texans would do well to consider the entirely realistic

145 See id.146 Juelfs, 41 P.3d at 595.147 See e.g. Bennett, 655 So.2d at 110-11; Stroh, supra note 47, at 234; Tillotson, supra note 4, at ¶ 24-25 (the time, money, and resources family courts would have to expend would be extremely burdensome).148 E.g. Bennett, 655 So.2d at 110-11; Stroh, supra note 47, at 234.149 Id.150 Id.

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probability that their relationship or marriage could fail, and if it does, what the future will be for

the family pet. If one or both parties to the relationship are deeply attached to the pet and are

concerned about a potentially unfavorable disposition in the event of a divorce, those parties

should seek competent counsel to draft an express agreement, signed by both parties, specifically

stating the method of disposition for the pet. In the event that the relationship fails and the pet

becomes the subject of a dispute, the parties should submit the agreement to the court and seek

enforcement of its terms. Without an agreement, a party is going to be relying almost exclusively

on the court’s wide latitude in determining who should be awarded the pet based on the facts and

circumstances of the case – a huge gamble indeed.

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