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Heather Jones

Divorce is a tough time for everyone, including our wonderful companion animals. Many people don't think about what happens to a beloved pet if the other spouse wants the animal, and you do too. Custody of pets is something that comes up often. Still, no one talks about who gets the dog or cat in a divorce in Illinois or about pet custody laws. Recently, pet ownership and divorce are becoming more recognized in courts nationwide, with new laws and approaches being implemented to handle specific issues. Divorce with pets can be complicated, but it's worth knowing your rights to plan for your pet and ensure they are appropriately taken care of.  


If you are concerned about who will take custody of the pet or pets or if you can get an order granting pet visitation in Illinois, you should make an appointment to meet with an experienced Illinois family law attorney to discuss your concerns and your goals. This article can help answer some initial questions someone might have, so read on to learn more about pet custody in Illinois.  

Couple discussing who gets pet custody of the golden retriever


What Determines the Ownership of a Dog in Illinois?


If the dog was purchased or adopted, there is usually paperwork involved that would be suitable proof of ownership in case of a dispute. For example, if you purchased a dog, there should be a transaction record. If you adopted the dog from a rescue or shelter, there should be an adoption packet that is given to you when you take the animal home. If you simply paid a third-party case for the animal, you could attempt to show the vet record from the first trip to the vet to establish the timeframe of when you purchased the pet (as in, before you were married). Essentially, any tangible documents from or associated with purchasing or adopting the animal. If you are wondering what determines the ownership of a cat in Illinois or others types of pets, the same guidelines given above apply!  


Pet ownership in Illinois is not different than any other state. If you are considering divorce and you are frightened that your spouse will try to take the pet, you should begin gathering evidence of your heavy involvement in your pet's daily life and care. Any kind of documentation will help. It can include photographs, videos, receipts…. any proof of your heavy involvement with and care for your pet or pets. This documentation will be used to show that you are the pet's primary caretaker. It is in the best interests of your pet's well-being that they are allocated to you in the divorce if the pet is marital property.  


If you are not yet married and are considering a prenuptial, it is always possible to include the issue of pet custody and visitation in the prenuptial agreement so feel free to have your family law attorney include a plan for any pets in the document.  

couple drinking coffee with pug



Illinois Pet Custody


Pet custody in Illinois used to be a relatively simple thing. The court would look at the pet or pets as "marital property" and divide it accordingly. That means that the court would consider the pet as just an object that would be awarded to one of the divorcing spouses, like a car or a home. As most pet owners know, your pet is not an inanimate object and should not be treated like one. Illinois now recognizes that pets in divorce cannot be treated like a retirement account or a summer cottage. A new law was created in Illinois in 2018, where now the court can consider the "well-being" of the pet in question. The law is an addition to the Illinois Marriage and Dissolution of Marriage Act or 750 ILCS §5/503(n). This law states that:  


If the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall consider the companion animal's well-being. As used in this Section, "companion animal" does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.  


Considering a pet's well-being is not unlike the method courts use when deciding a custody issue of children in a divorce, otherwise generally referred to as the "best interests" test. While pets and children differ, the court will now look at factors in addition to whether or not the pet is a marital asset.  


Determination of Whether or Not the Pet is a Marital Asset


Before considering the animal's well-being, the court will first determine if the animal is even marital property. If the pet was purchased or adopted during the marriage, it would be considered a marital asset. If the pet was owned by one of the spouses before the marriage, or if the pet came to one of the spouses via gift, devise, or was exchanged for separate property, the court will consider the pet "separate property." If the pet is separate property, the court will not divide it, and the pet will remain with the individual owner.  

Child sitting with the family dog


Determination of the Well-Being of the Pet


So, what does the court look at if the pet is considered marital property and the court needs to decide as to which spouse will get custody of the pet? To begin, the court will look at the most distinct factors, specifically who usually takes care of the pet. If one of the spouses spent more time feeding, exercising, and just playing with the pet, the court would take that into consideration when deciding who gets the pet. As always, evidence other than your own testimony will be beneficial. Make sure you keep a record of all the time and care you provide for your pet if there may be a pet custody dispute. Other factors could be if one spouse is gone from the home more often or has to travel a lot for work, the court may decide that the spouse who is home more would be the best one to have custody of the pet.  


Courts will also look at if there are children in the marriage and if taking the pet away will negatively affect the children. If the children are bonded to the companion animals and spend the majority of their time with one of the parents, the court may find it the best decision to keep the pet at the home where the children reside.  


Joint Ownership of the Pet(s)


In some circumstances, the court might elect to award joint ownership of the pet or pets. The issue with joint ownership is that it can lead to post-decree litigation, that is, one of the joint owners taking the other to court for additional rights or enforcement of a right, so the courts tend only to want to have one sole owner of the pet post-divorce. Furthermore, if the is joint ownership of the pet or pets, there will most likely be a court order allocating financial responsibilities for the pet. Depending on the individual facts and circumstances, the court could also enter an order for the visitation of the pet or pets.  


As of the writing of this article, there are hardly any appellate court rulings concerning pet custody and visitation. Trial courts look to appellate decisions for guidance on correctly ruling specific issues. Currently, trial courts have to do their best when issuing rulings regarding pet custody and visitation. Undoubtedly, with time, there will be more cases regarding Illinois Divorce Law for Pets and visitation in the books to help everyone understand this rapidly emerging area of law.  


If you are considering a divorce or in the process of divorce and are concerned about keeping your pets with you, you do have rights and a way to potentially meet your legal goals. If you have questions, please feel free to give O'Flaherty Law a call. Our experienced family law attorneys would be happy to help you.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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