In Illinois, courts previously viewed animals as property. Pet custody did not appear in divorce case law until 2015. In that case, the husband sought visitation with the parties’ two dogs, who had been in the wife’s possession during separation. The court viewed this as a property issue and looked to the Animal Control Act to define “owner.” Using the Act’s definition of owner, the court awarded custody to the wife without any visitation to the husband. The courts believed that awarding pet visitation served as an invitation for endless post-divorce litigation. Under this case law, if two parties separated, the party who obtained possession and control of the pet prior to the divorce was awarded pet custody.
Illinois law has since adapted to the way families view and treat their pets. One study found that more than 95 percent of pet owners described their dog as a family member. Owners form strong emotional bonds with their pets, buying presents, grooming products, and even hosting pet parties. In 2018, the Illinois legislature enacted laws that address companion animals. The term “companion animal” includes essentially any pet not considered a service animal.
The new statute, effective January 1, 2018, allows parties to enter into an agreement that addresses the ownership, responsibility, and visitation of a companion animal. Pursuant to the Illinois Marriage and Dissolution of Marriage Act, the ownership of and responsibility for companion animals found to be marital assets will be allocated to one party or to the parties jointly. The animal will be considered a marital asset if it was acquired during the marriage and was not an inheritance or gift to one spouse. The statute does not address what happens if the animal was a gift to the children.
When devising a pet schedule, the parties must each consider the best way to transport the pet between homes, who will pay for the pets’ expenses (including food and veterinary care), who will be responsible for grooming, and what items are needed in each home to keep the pet happy and healthy.
If the parties cannot agree, then either party may ask the court for the temporary allocation of, sole or joint possession of, and responsibility for, a companion animal jointly owned by the parties. When awarding possession, responsibility, and visitation, the court will consider the pet’s well-being. Some of the factors considered include if there are children, where the children will be living, whether one spouse was more instrumental in purchasing the pet, and who was most responsible for the pet’s care during the marriage, including daily feedings, walks, and veterinary appointments.
Strategic Divorce can help navigate pet custody and every other aspect of divorce. If you have questions about how a pet may be treated in your divorce, or other questions related to divorce, contact Strategic Divorce for a consultation.
Michone J. Riewer is an attorney with Strategic Divorce in Lake Bluff, 847-234- 4445, strategicdivorce.com.