What happens to pets during a divorce?

Pets are an essential part of the family. They comfort their owners, keep them active, and provide company. Despite their significant role, the law was silent on how to determine what happens to pets in a divorce until recently. Illinois law now encourages divorcing couples to address their arrangements for pets after a divorce and allows judges to allocate possession and responsibility if the parties are unable to agree.

An important distinction is whether a pet is a companion animal or a service animal. Service animals are specially trained in obedience to meet the needs of a person with a disability. This does not include pets that may be designated as “emotional support animals.” The court does not have the authority to decide who keeps a service animal, as it is the sole property of the person with a disability.
Companion animals are any pets that do not qualify as service animals and fall under the court’s jurisdiction.

Companion animals are considered property under Illinois law. Therefore, a court can assign pet ownership the same way they determine who receives a car or retirement account. Just as retirement accounts or bank accounts may be divided with each party receiving a portion, a court could order that parties share “custody” of their pets. Illinois is one of only three states, the others being California and Alaska, that addresses how courts will handle pets in a divorce. The Illinois statute states that the judge “shall take into consideration the well-being of the companion animal.” Several other states currently have pending legislation that acknowledges pets should be treated differently than other marital property.

Since pets are considered property, a pet may be a marital or non-marital asset. If you bought or adopted the pet on your own before you married your spouse, you could likely claim that the pet is a non-marital asset, and your spouse has no claim to ownership. On the other hand, if you and your spouse obtained the pet after the marriage, it would be considered a marital asset.

Pets also differ from most other marital assets in that they require money for their care. If a couple is going to share possession of the pet after the divorce, they must also determine how the vet bills are paid.

There are many factors to consider when determining what is best for your family. This is a very new area of the law, and there are few examples to guide what to expect. Like with many other issues, it is often best if you and your ex-spouse can reach an agreement between yourselves instead of requiring a judge to make the decision. No one knows your pet better than you, and you should be the ones deciding its fate.