Who gets the pet?

by | Mar 25, 2020 | property division

One of these things is not like the other: Car, couch, painting, Golden Retriever. Which is it? The dog, of course. Unlike the others, the dog is a living, breathing, and feeling animal. And dogs—and other pets—can lead to some uniquely tricky and emotional arguments during divorce.

Until recently, dogs and other pets were simply considered property. They weren’t children, so they weren’t subject to custody rules. Divorcing couples were forced to think about their furry kids the same way they would think about chairs, jewelry, and houses. It was a flawed system, so Illinois changed it with the recent introduction of a pet custody law.

The many questions of animal custody

While the new law puts Illinois at the forefront of animal custody, it still leaves a lot of room for questions. In many divorces, those questions—or gray areas—can lead to arguments. Whether you hope to resolve your differences in court or mediation, it helps to understand where the law is clear and where it leaves room for debate.

Let’s start with where the law is clear:

  • A service animal does not count as a pet (or “animal companion”) for custody questions
  • The court must address the custody of any pet that is marital property
  • The court can award either sole or joint “ownership of and responsibility for” the pet
  • In a pet custody award, the court must consider the animal’s “well-being”

These guidelines lay the foundation of any custody dispute. But they also leave a lot of room for questions, including those raised in an article published by the DuPage County Bar Association:

  • How much freedom do the courts have to award joint ownership of animals that were not marital property?
  • What financial responsibilities, if any, do the parties have to each other for the animal’s support?
  • How will the courts decide what’s good for the animal’s well-being?

Now that the new law treats pets more like children than furniture, will courts and couples refer to child custody laws as they find their way forward? How much will it matter that you can prove you can give your pet a stable home? How will your physical and mental health impact your chances of spending time with your pet? There are at least 10 different factors the courts review in child custody disputes. How many may apply to pet custody disputes?

Voluntary agreements may be best

As is often the case with divorce, your best bet may be to take your pet custody dispute into mediation. Even where the law is unclear and raises doubts, mediation gives you a chance to stay in control as you settle your differences.