It is common knowledge that when parties divorce, they have to figure out how to share time with their children and divide their personal property, among other issues. However, one thing that may not be regularly considered, except perhaps by some pet lovers, is determining which party will keep a pet.
On a temporary basis, Section 501 of the Illinois Marriage and Dissolution of Marriage Act permits either party to request, on a temporary basis, sole or joint possession of and responsibility for a companion animal, or pet, that is owned jointly by the parties.[1] In determining who should get possession of the pet, the court considers the well-being of the pet.[2]
Illinois law also provides a provision for determining ultimate ownership of pets at the finalization of a divorce. Section 503 of the Illinois Marriage and Dissolution of Marriage Act provides that if the court finds a companion animal of the parties to be a marital asset, the court will allocate sole or joint ownership of and responsibility for the pet.[3] Again, in making this determination, the Court is to consider the “well-being” of the companion animal.[4] It is important to note here that the definition “companion animal” does not include service animals.[5] Because of the nature of their work, service animals remain with the individual who requires their service.
Prior to 2018, family pets were simply treated as property to be divided up between the parties at the time of divorce. In fact, in 2015, the First District Appellate Court decided a case, In re Marriage of Enders, in which the trial court had entered an order temporarily granting “joint custody” of the parties’ dogs.[6] However, the wife denied the husband visitation of the dogs and he filed for visitation of the dogs prior to the final trial.[7] The trial court found that, despite the order granting joint custody, the husband had no visitation rights under the law at that time and the Appellate Court affirmed such.[8] The Appellate Court’s reasoning in 2015 was that under the Animal Control Act the wife was the “owner” because she was the one who “keeps or harbors” the dogs and has them in her care.[9] Interestingly, the EndersCourt warned that awarding pet visitation “would only serve as an invitation for endless post-divorce litigation,” citing a New York Supreme Court case.[10] Despite this warning, Illinois changed its laws in 2018 to allow for sole or joint possession of pets, as described above.
Because these changes to the statute are still relatively new, we do not yet know how courts will treat ownership of pets going forward. There are many questions that will be answered in the coming years as the courts clarify the role of pet visitation and ownership in a divorce proceeding. Some of these questions include, how will the Court determine the “well-being” of the animal, will parenting plans need to be prepared for the schedule of the animals, will the parties have to agree on a course of treatment if an animal is sick or injured, and many more.
If you have any questions regarding pet visitation, divorce, or other legal matters, please contact our office for help at shererlaw.com or 618-692-6656.
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[1]750 ILCS 501(f)
[2]Id.
[3]750 ILCS 503(n)
[4]Id.
[5]Id.
[6]In re Marriage of Enders, 48 N.E.3d 1277 (1stDist. App., 2015).
[7]Id.
[8]Id.
[9]Id.
[10]Id.
