“Petnups” and Pet Custody in an Illinois Divorce

 Posted on June 30, 2021 in Divorce

We love our pets in this country. It is estimated that there are more than 76 million companion pets living in American households. For most of us, our pets are not simply “pets,” but they are part of our family. But what happens when a couple who has one or more furry family members decide to divorce? As a DuPage County divorce attorney can explain, custody of pets can get just as contentious as custody of children in an Illinois divorce.

Illinois Pet Custody Laws

Until a few years ago, Illinois family law judges viewed pets in a divorce as property and treated the decision as to where the pet would live the same way they decided who would get the fine china or ATV. In 2018, lawmakers addressed this issue and changed the Illinois Marriage and Dissolution of Marriage Act (IMDMA) about how judges could address this issue.

The first change in the law was now referring to pets as “companion animals.” Keep in mind, however, companion animals are entirely separate from service animals. If a spouse has a service animal, as defined in the Illinois Human Care for Animals Act, that service animal is not included in the divorce settlement.

When deciding pet custody, the judge overseeing the divorce must decide if the companion animal is a marital asset. A marital asset is an asset that was acquired during the marriage. If the court decides the companion animal is not a marital asset, then the judge will award the spouse the “non-marital asset.” For example, a man has a dog for five years and then gets married. Two years later, the couple is getting a divorce and the wife wants the dog. Since the man had the dog prior to his marriage, the court would likely rule the dog a nonmarital asset and the wife would have no rights to the dog at all.  

If the companion animal is deemed a marital asset, then a decision will need to be made regarding ownership of the pet. When making this decision, the court will consider the well-being of the pet, considering the relationship each spouse has with the pet, where the children will be living, and which spouse spent the most time/energy caring for the pet. In many cases, the courts decide that it is in the animal’s best interest to maintain a relationship with both spouses.

Petnups

A growing legal trend that many couples are considering is petnups. Just like a prenuptial agreement that addresses how assets and property will be divided should the couple divorce, a petnup stipulates how custody of a couple’s pet will be divided should they break up. The petnup can address how much time each spouse will get with the pet, where the pet will live, and who will be responsible for expenses for the pet (i.e., vet bills, grooming, etc.)

Contact a Naperville Divorce Attorney for Legal Assistance

If you are planning on getting married, a petnup provision can be included right in a prenuptial agreement, as well as any other asset and debt stipulations you and your spouse-to-be would like addressed. To learn more, contact Pesce Law Group, P.C. today at 630-352-2240 to schedule a free consultation with one of our skilled DuPage County prenuptial agreement lawyers.

Sources:

https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1717&ChapterID=41

https://www.nbcwashington.com/news/local/clear-the-shelters/post-divorce-pet-disputes-are-on-the-rise-so-are-petnups/2707007/