In Illinois, as in most states, pets are property. While that makes sense and causes no problems in most situations, the legal classification of a pet as similar to an end table or a bank account often becomes problematic in divorce proceedings. Though objects may have sentimental value or history that makes them more valuable to one party than the other, courts are rarely asked to think about the well-being of a sofa or to consider that a racing bike may have a stronger bond with one party than the other.

Where pets are concerned, issues such as emotional attachment and the willingness and ability to provide adequate care are very real. But, until recently, the law did not acknowledge them. Over the past several years, some states have adopted a hybrid approach, still treating pets as property but taking their needs and the relationships of each party to the animal into account. On January 1, 2018, Illinois joined that movement.

The New Illinois “Pet Custody” Law

The new Illinois law doesn’t actually go as far as to shift the legal basis of the determination from ownership to custody. Pets remain property under Illinois law. The court awards ownership of the pet, not custody or visitation. However, the new provision allows courts to consider some factors similar to those that play a role in child custody determination, and to order joint ownership of a pet where appropriate.

The new addition to 750 ILCS 5/503 reads in part:

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.

Note that the statute references not just ownership, but also responsibility—a significant departure from prior law. In addition, while the law doesn’t specifically refer to time with the pet or maintenance of a relationship with both parties, the court’s ability to order joint ownership creates a framework to ensure that each “parent” has access to the animal and a voice in its care.

The new section also provides:

…the court shall take into consideration the well-being of the companion animal.

Again, the statute doesn’t specify exactly how this determination is to be made. However, this provision opens the door to considering issues such as the bond the animal has with one or both parties, the willingness and ability of each party to care for the pet, and other factors similar to those considered in a child custody case. Potentially, the pet’s relationship with children and vice versa could also factor in. This issue would typically be most relevant when the children live full-time or nearly full-time with one parent, or where only one of the divorcing parties is the children’s parent.

Procedural Issues in Pet Ownership

Like both child custody and property division, pet ownership can be allocated on a temporary basis while the divorce is pending. The process for making this determination is much like the process for entering temporary orders regarding any other aspect of the case, such as interim child support obligations or temporary possession of the family home. The factors to be considered in determining temporary possession and care of the family pet are the same as those relevant to permanent orders.

Similarly, divorcing parties have the option of entering into an agreement with regard to ownership of and responsibility for a companion animal. The agreement must generally be in writing. However, as with any other aspect of an agreement between the parties, the court must approve the terms.

Animals Not Covered by the “Pet Custody” Law

The new Illinois law changes the way certain pets—described in the statute as “companion animals”—are addressed in divorce cases. However, not every animal owned by a couple or by one spouse falls under the new provision. For example:

• The new statutory provision applies only to companion animals that are deemed marital property. A pet owned by one spouse separately, such as a dog the wife owned prior to the marriage, is not subject to allocation of ownership under the statute.
• The statute specifically excludes service animals as defined by section 2.01c of the Humane Care for Animals Act: “an animal trained in obedience and task skills to meet the needs of a person with a disability.”
• The statute applies only to animals that would be conventionally described as pets, not animals primarily used in business, livestock, or for other commercial purposes.

Obtaining Custody of Your Pet in Illinois

For many people—especially couples without children who have long-time companion animals—possession of a pet or pets is one of the most emotional and contentious issues to arise in the course of a divorce. While most property division issues revolve around monetary value or practical needs, one party typically can’t fairly compensate the other for his or her share in the cat they both love.

The new Illinois law empowers divorcing couples to reach agreements that work for everyone, and courts to enter orders that consider the emotional bonds of the parties with the animal and the animal’s welfare. However, creating a workable arrangement for sharing a pet can be very difficult, particularly when the divorce is not amicable. And, the legal foundation for shared ownership of a pet is new enough that there are not yet clear norms as to the factors to be considered or how joint ownership will play out.

If you are divorcing or considering divorce and own a pet jointly with your spouse, talk with an experienced Illinois family law attorney about your options under the new law and how best to move forward.