Illinois divorce law is uniquely pet-friendly

A recent law provides a new approach for judges facing disputes over who gets the family pet.

The Insurance Information Institute says that 67% of U.S. households have pets, citing the 2019-2020 National Pet Owners Survey. With the commonality of divorce, what will happen to a beloved pet when a marriage ends can be an agonizing question for many, especially when children who love that dog or cat are involved.

But its not just the kids who are passionate about pets. With high student loan debt and other financial challenges, many young adults are putting off parenthood and focusing their nurturing on their fur babies. The furry object of affection is likely to become the subject of an emotional dispute should the couple decide to divorce.

Traditionally, state laws that govern family law matters have treated pet animals as personal property, treated like a family's inanimate objects when it comes to property division in divorce. Yet, beloved animals are something different. Obviously, they are living, feeling beings that give and receive love. But they do not rise to the same level of concern that we have for children in divorce, of course.

The divorcing spouses can negotiate an agreement about the pet

Before the issue of pet "custody" gets to a judge though, a couple may be able to negotiate a marital settlement agreement that includes mutually agreed-upon provisions directing how the pet will be handled after divorce. For example, maybe the pet moves from home to home with the children or maybe the parties agree to split the pet's time between the two new households. The couple could even agree to share pet expenses or purchase pet health insurance.

Even earlier, a couple could resolve pet issues in a prenuptial or postmarital agreement. But if there is no valid agreement governing pet issues in divorce, it will be up to the judge in the divorce.

Illinois' groundbreaking pet custody bill

Since 2018, Illinois has been one of only three states (also Alaska and California) with laws that elevate family pets to a higher status in divorces. The new Illinois law added a new section to the property division statute, providing that when a "companion animal of the parties" is marital property, the judge "shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties." The statute requires that the judge make these decisions after considering the "well-being" of the pet.

One dispute that could arise is whether the pet is "marital property." Marital property is any property that came into the marriage during the marriage that is not separate property. Separate or nonmarital property is that brought into the marriage by one of the spouses as preowned or that one of them received individually as a gift or inheritance.

If a pet is separate or nonmarital property, it would remain with the owner.

The new law also allows a divorcing party to ask the court to temporarily determine "sole or joint possession of and responsibility for" a pet during the pendency of the divorce proceedings. Again, the judge must look at the well-being of the animal.

Illinois law defines a "companion animal" as one "commonly considered to be, or is considered by the owner to be, a pet," including dogs, cats and horses, but not limited to those species. The law does not apply to a service animal, which would remain with the spouse to whom the animal is attached for service-provision purposes.

Judges are interpreting these new provisions of law in Illinois and it remains to be seen how courts will handle them. In the meantime, a family lawyer up to date on these issues can provide advice and representation in a pet custody dispute.

The attorneys of Stange Law Firm, PC, with offices throughout Illinois, Kansas, Missouri and Oklahoma represent clients in divorce facing pet custody issues and all other legal matters associated with ending a marriage.