What Happens to the Family Pet After a Divorce?

Pets are often viewed as important members of the family. One issue that arises in divorce cases when there is an animal involved is who gets to keep the pet? In recent years, litigation surrounding pet “custody” and “visitation” has become increasingly common.

In Illinois, the Courts consider pets to be an item of personal property and not an individual. This means that the property section of the Illinois Marriage and Dissolution of Marriage Act applies to animals. When dividing property, Courts ascertain whether an item of property is categorized as “marital” or “non-marital.” There are many factors the Court considers when determining the nature of property. Those factors include, but are not limited to: (1) Whether the item was purchased prior to or during the marriage; (2) Whether the property was acquired by gift, legacy, or descent, and (3) if there was an agreement between the parties as to how the property was to be categorized.

If a pet was purchased prior to the marriage by one party, the Court would likely award the pet to that party. Likewise, if a pet was given to someone as a gift by another family member, friend or the like, the pet would likely be awarded to that individual. Some parties have agreed on who would keep the pet in the event of the divorce, whether by entering into a Premarital Agreement or other written Agreement, and that party would then keep the animal.

Things begin to get tricky when the pet is considered marital property and thus belongs to both parties. In this instance, unless the parties come to an agreement, the Court will need to make a decision on which party keeps the animal. In order to reach that decision, the Court will consider several factors. However, the main factor to be considered when an animal is involved is the contribution of each party to the animal (ie: who fed the animal, walked the animal, and took the animal to vet appointments). The party who had more responsibility in caring for the pet is more likely to be awarded that pet.

Courts will not typically Order a “visitation arrangement” when it comes to animals since they are considered personal property and not individuals. However, parties can come up with their own “visitation arrangement” and as long as it is agreed to, this can be included in the divorce judgment.

Since pets are considered property and the Courts do not look at them the same way they look at children, it is important that the parties to a divorce attempt to reach an agreement regarding who keeps the pet. The parties know themselves and the pet more than the Judge and it is more likely the parties will be satisfied with an arrangement they reach between themselves than one a third party reaches for them.

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