Even under the best of circumstances divvying up your assets and deciding who gets what in the divorce settlement can be difficult. But what about your beloved pet? To you, Fido may be family, but unfortunately Texas, along with most other states, considers pets property.

As property, Fido is subject to our community property laws. This means that if you and your spouse cannot hash things out ahead of time, the court will decide who gets the pet. In some rare instances, visitation with the non-custodial pet owner is awarded.  And if your pet is valuable (such as a show animal or a horse), the court could actually require it to be sold and the proceeds divided. There is an exception—only if you can prove that your pet is actually your separate property. To prove this you have to be able to show that either you owned the pet prior to the marriage or that it was given as a gift or was willed to you during the marriage.

So what can you do to ensure the best fate for Fido? Keep him out of the divorce proceedings. This means doing everything you can to work things out with your spouse prior to court. If your spouse is resistant, perhaps shared custody/visitation rights can be agreed upon. If so, have your attorney draft up the mutual agreement for the court.

If you just can’t work things out with your spouse, you will have to fight for Fido. To help your case, ensure that your attorney is aware of how important your pet is to you and is sympathetic to your attachment. Then, be prepared to show the court why custody should be awarded to you. Here are some possible considerations:

  • You may be the custodial parent of minor children who have attachments to the pet.
  • You may be the one who has taken the most care of your pet, such as grooming, vet visits, and exercise.
  • You may have more time to exercise and play with your pet.
  • You may be healthier and better able to deal with the responsibility.
  • You may have more space.
  • You may be better able to afford pet related expenses.

There’s one more critical consideration. What’s really best for Fido? Despite how you feel and how attached you are, the key goal should be what is actually going to be best for the animal. So before you act at all, do some soul searching and then, when you’re ready to act, make sure your attorney is supportive but practical about both your and your pet’s best interest.

Above all, keep in mind that many judges are skeptical of battles over pets.  Unless you have a judge that is a bona fide pet lover and owner, he or she may not take your concern seriously, which could result in a ruling not necessarily in your best interest or your pet’s.  All the more reason to do your absolute best to resolve the issue with your spouse without involving the judge.