As divorce lawyers in Illinois, oftentimes we deal with issues surrounding a family’s pets including dogs, cats, and other animals. The Illinois Marriage and Dissolution of Marriage Act provides for custody-like provisions regarding the family pet, also known as ‘companion animal’ upon a divorce.
Section 5/503(n) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) regarding “disposition of property and debts” provides:
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. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.
Thus, the court will first consider whether the companion animal is a “marital asset.”
When is a Pet a Marital Asset in Illinois?
Generally, a marital asset is property acquired after the marriage, unless, for example, the property was acquired by gift, legacy of descent, the property was acquired in exchange for property acquired before the marriage, or the property is excluded by valid agreement of the parties, including a premarital or postnuptial agreement.
If the court finds the companion animal is not a marital asset, then the person will be awarded his/her non-marital property.
If the court finds that the companion animal is a marital asset, the court shall then allocate the sole or joint ownership of and responsibility for the animal. When making provisions for a companion animal, the court shall take into consideration the well-being of the companion animal.
How Does the Court Consider the “Well-Being” of the Pet?
To our knowledge, there has not been a case decided by the Appellate Court since the companion animal section was added to the IMDMA (in January 2018) that would provide further insight into the factors the court would consider, yet, we could look to the provisions governing allocation of parental responsibilities regarding decision-making for minor children and the ‘best interests standard for a frame of reference. The factors are listed below.
- the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to decision-making;
- the child’s adjustment to his or her home, school, and community;
- the mental and physical health of all individuals involved;
- the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
- the level of each parent’s participation in past significant decision-making with respect to the child;
- any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
- the wishes of the parents;
- the child’s needs;
- the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
- whether a restriction on decision-making is appropriate under Section 603.10;
- the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
- the physical violence or threat of physical violence by the child’s parent directed against the child;
- the occurrence of abuse against the child or other members of the child’s household;
- whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
- any other factor that the court expressly finds to be relevant.
One could see how most of the factors could be applied to the allocation of sole or joint ownership of a companion animal. For example, a court could look at which party regularly took the animal to the vet, which party arranged for care if the parties were going out of town, which party took the animal to training classes, which party took the animal to be groomed, which party fed and walked the animal on a daily basis, and so on. If there are children in the case and the children are close to the animal, then does the animal follow the children during their parenting time with each parent? It will be interesting to see what factors our Appellate Courts focus on if/when they decide the first case involving companion animals.
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