The Law Q&A: Who gets the pets in a divorce?

The Law Q&A: Who gets the pets in a divorce?


In follow-up to our pet-walk talk a few weeks ago, today let's chat about one of the most painful of things in a divorce — no, not who gets the kids.

Who gets the pet?

Illinois law allows property settlements to be made between divorcing parties. One spouse gets the house; the other the car. One gets the Hummels; the other the Power Rangers game box. And so forth.

Among the items of property to be disposed, the family pet has long been subject to property settlements. Ex-husband gets the couch. Ex-wife gets Fluffy. And so forth.

The judge ultimately approves custody of the kids, even if the parties agree on how to make it happen. That's based on what is in the best interest of the child.

Effective this year, the Illinois General Assembly passed an amendment to the Dissolution of Marriage Act. Now, the General Assembly has seen fit to have judges treat the beloved non-Homo sapiens family member of the family with nearly the same considerations for custody as afforded Junior and Missy.

The judge now must take into consideration the well-being of Cujo or Fluffy when deciding ownership and custody. That means: What is in the best interest of Cujo or Fluffy when deciding custody?

As with the kiddies, either party may ask the judge for temporary allocation of, or sole or joint possession of and responsibility for, the companion animal that is jointly owned by the parties.

If the judge determines that Cujo is marital property (i.e., property acquired by the couple or one of them during the marriage), the judge will allocate the ownership of and responsibility for Cujo between the divorcing couple based on what's best for Cujo.

If Cujo was owned by only one spouse before the marriage, Cujo is not marital property and won't likely be ordered by the judge to be turned over to the other spouse.

But if the pet is marital property, now the judge must weigh what is in the best interest of the beast.

Perhaps Cujo is a mama's boy, and the soon-to-be-ex-wife is the better caretaker for Cujo.

Or perhaps mom is in trouble with the law and is constantly in and out of jail. Then maybe the ex-husband is the better pick to take custody. And so forth.

Service animals are exempted under said provisions. A service critter is one trained to assist a physically impaired person in daily life activities including being a guide animal; a hearing animal; trained to pull a wheelchair; trained to fetch dropped items; or trained to perform balance work.

Such creature is not subject to being given to the other divorcing spouse who does not use the pet as a service animal (but let's see what happens if the pet acts as a service animal for both spouses — another reason why we have lawyers).

In the final analysis, however, one must never forget an overriding, self-evident truth:

Dogs have owners; cats have staff.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.