If breaking up is hard to do, leaving your precious pet behind is even harder. This episode highlights some issues that a court will consider if the two of you can't agree on who will be the human in your pet's life. Did you know that it makes a difference if you live in a separate property state or a community property state? Join my guest Texas family law attorney Shannon Boudreaux to learn more!
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Cindy Hide: Welcome to Love, Money & the Law. The subject is “Who Gets the Pets in a Split?
I'm Cindy Hide, and my guest today is Shannon Boudreaux of Boudreaux Hunter & Associates, a family law firm in Houston, Texas. Welcome, Shannon.
Shannon Boudreaux: Hi. Thank you. Thank you for having me.
Cindy Hide: So, this is something that maybe a lot of people don't really think about.
Shannon Boudreaux: Not until you're in it.
Cindy Hide: Not until you're in it is right, whether you're living together or you're married.
Shannon Boudreaux: Correct.
Cindy Hide: So, let's talk about if you're living together and you don't have a cohabitation agreement. You have not chosen the path of going to a family law attorney and sorting out all your issues, which would be so valuable. Instead, you've decided to live together and just sort of see how it goes. All right. So, let's look at a couple of different possibilities.
Shannon Boudreaux: Okay.
Cindy Hide: If you bring the pet to the relationship, chances are you'll be the one to take it with you when it's over or if it's over. But what happens if while you're living together, you decide to acquire a pet and then later, you split? How do you sort that out?
Shannon Boudreaux: Well, if they’re not married and they're living together and they don't have a cohabitation agreement as to how they're going to divide up their stuff, look to the person who actually bought the pet or rescued or adopted. Who spent the money to acquire this animal? And if it came out of a joint account, then you need to look at other factors such as who's the primary caregiver of the pet, who's taking the pet to the vet, who's giving them their shots, who’s taking them on walk. The same kind of factors that you look at in the situation where the parties were married.
Cindy Hide: So, it's sort of like a “best interest test” of the pet, right?
Shannon Boudreaux: It is. It is. Unfortunately, Texas doesn't recognize the “best interest” of the pet, but those are the factors that a court could look at to determine who should get the pet in the event of a split.
Cindy Hide: Okay. So, what happens if I say, "Well, he gave it to me" or "She gave it to me and the dog is mine now?” How do you refute that sort of very private conversation?
Shannon Boudreaux: Well, if the dog is a gift, then it would be that person's separate property even if there was no marriage or even a cohabitation agreement. If it's just going to come down to "he said, she said," I guess it's just going to really depend on who the judge thinks is most credible.
Cindy Hide: All right. And there's something else in Texas called conversation, and we were talking a little earlier about an example. Can you share a fact situation of what happened?
Shannon Boudreaux: Yes. We took a case over from another lawyer where our client was moving to a different country and that country has quarantine laws, and she did not want to quarantine her dog for any extended period of time. So, she gave the dog to her neighbor and the neighbor was welcome. She was so excited to have the dog.
Shannon Boudreaux: Our client ended up not moving after all, so she wanted her dog back and the neighbor wouldn't give the dog back. She fell in love with it and she wanted to keep the dog. So, she didn't give the dog back. So, the other lawyer ended up filing a conversion lawsuit, which is basically a civil term for "You have my stuff, but I want it back." We ultimately ended up dropping the case because she did give the dog away. It wasn't converted. It's not like the neighbor came and took the dog away from her. She had actually given the dog away. So, we ended up dropping the case.
Cindy Hide: And a gift is a gift is a gift, right?
Shannon Boudreaux: That's right. That's right.
Cindy Hide: Okay. So, we have to be careful about how things are presented under the circumstances. All right. So, what happens if the couple is married? Little different situation.
Shannon Boudreaux: So, if the couple is married, if you had the pet prior to marriage, that pet is going to be your separate property because you had it before you were married and anything acquired before marriage is your separate property. If the pet is purchased, rescued, or adopted during the marriage, it's considered to be community property. It’s subject to division just like your furniture, just like your car. And Texas does not have... We don't have yet a “best interest of the pet” test. So, the dog could be subject to a just and right division just like all your furniture, all the content in your house.
Cindy Hide: And it might be... a court might take into consideration some of the things you mentioned earlier about who's taking care of the dog or the cat or whatever the case may be and who's taking them to the vet, who's spending the most time, that sort of thing.
Shannon Boudreaux: Mm-hmm (affirmative).
Cindy Hide: You've done a little bit of homework in other states also other than in Texas.
Shannon Boudreaux: That's right.
Cindy Hide: So, talk to me about that a little bit.
Shannon Boudreaux: Hopefully Texas will follow in the path of some of our other states. Alaska was the very first state that implemented a “best interest” of the pet test, and they do take the pet's feelings and the owner's feelings into consideration whenever they're making the award. California, their governor at the end of last year signed legislation that actually treats animals more like children now. They're still subject to division, but they do have a “best interest of the pet test” in California. And in Vermont, there was a case where a couple went all the way up to the Vermont Supreme Court fighting over their... I believe it was a German Short-haired Pointer. They spent hundreds of thousands of dollars on their lawyers to take it all the way to the Vermont Supreme Court, but they changed the law. And now in Vermont, pets are treated somewhat like children.
Cindy Hide: So, they changed the law after the case was over or in the middle of it?
Shannon Boudreaux: The Supreme Court actually changed the way pets are treated in the case that came down.
Cindy Hide: Oh. As a result of their efforts.
Shannon Boudreaux: As a result of... Yes. As a result.
Cindy Hide: Okay. Well then it was worth it.
Shannon Boudreaux: Money well spent. Yeah.
Cindy Hide: So, is this, let's say, an issue that might be sensitive to different age groups for any reason? Have you seen any trends in that respect?
Shannon Boudreaux: Yes. What we've seen most often at our office are the two different age groups. The young couples who are newly married or aren't married, they've been deferring having children, but they adopt pets and their children are their fur babies. And then the second group that we see is the other end of the spectrum, the older couples who are now... all their kids are grown. They're the empty nesters and they're missing their kids. And so they adopt their fur babies. So, those are the two most that we see.
Shannon Boudreaux: The issue, when it's come up, it's not really been an issue with the parties who are married and have kids because typically the pets follow the children in those cases.
Cindy Hide: That would make sense.
Shannon Boudreaux: Mm-hmm (affirmative).
Cindy Hide: All right. Anything else you'd like to add, things that you might want to share with others to think about?
Shannon Boudreaux: Yes. Texas is coming around. We are looking at a lot of pet legislation in our House right now. One of the ones is making sure people who abuse animals, that's a felony crime. Also the chaining laws. The people who chain their pets up in their yard for extended periods of time, they can be fined, cited for that kind of behavior. So, fortunately, Texas is coming around and being cognizant that we love our animals and they should be treated better.
Cindy Hide: Yeah. I don't understand anybody who abuses an animal or doesn't treat them with such love. I mean, that's what they do. They're a part of your family.
Shannon Boudreaux: Yeah. And they love us unconditionally no matter what we do.
Cindy Hide: Absolutely.
Shannon Boudreaux: They should be treated the same.
Cindy Hide: All right. Thank you so much for being with me today. And just as a reminder then, all of this can be solved by having a cohabitation agreement in advance, and so you sort this out before there are any potential problems. And I appreciate you having a chat, Shannon Boudreaux of Boudreaux Hunter & Associates. I'm Cindy Hide, and we'll see you next time on Love, Money & the Law.
Shannon Boudreaux: Thank you so much for having me.
Cindy Hide: You bet.