Property Division, Pets, and Divorce: Who gets Lassie?

 Posted on January 07, 2014 in Property Division

Divorce is a complicated process, with many important decisions to be made. One of the most convoluted parts of divorce is property division. For many families, pets are more than just property; they are members of the family. However, in the eyes of Illinois law, they are treated simply as property.

According to the American Academy of Matrimonial Lawyers, pet custody cases are on the rise in the United States. Surveys say that more than 60 percent of American homes have pets. Pet ownership and maintenance is a rising field of business, as displayed with the increase in insurance for animals, fancy salons, and even pet attire. When breakups and divorce occurs, the destiny of pets can turn into a real dogfight.

Illinois Property Division

Illinois, like many other states, considers pets as property of an individual. In splitting up divorced couple’s items, Illinois courts claim everything as either non-marital (i.e. belongs to only one spouse) or marital property (i.e. belongs to both spouses). The court then gives both spouses his or her non-marital property and an equal share of the marital assets.

Non-marital property can include any property that was acquired by only one party by gift or inheritance, assets received before the marriage took place, and property that was excluded as marital property by mutual acceptance. Therefore, if one of the parties possessed the animal prior to the nuptials or was given it in a will or trust, or if both spouses decided that only one of them would have ownership over the animal after the dissolution of the marriage, then the court would consider it as part of that spouse’s non-marital assets.

The really complication occurs when the pet is considered marital property; that is, all property that is not considered to be non-marital. There are a number of factors that can affect the ownership of a pet in a given divorce case. If both parties want to keep the pet, it can become very difficult to come to a mutual agreement with which both parties are content. If the case ends up going to court, a judge will have to make the choice based on the testimony of the parties and other findings of facts.

Keeping Lassie

According to the Huffington Post, courts in some states have awarded share custody of pets, with visitation and pet support payments, after reviewing evidence and testimony that was provided by the parties and even expert witnesses in regards to what is in the best interests of the pet.

Shared custody of a pet, however, can become difficult if one spouse moves far away or if one spouse moves to a smaller location that may not be suitable for a pet. Similarly, a party who is facing financial uncertainty post-divorce may not be able to pay for a pet’s upkeep. What can someone do to ensure Lassie is taken care of post-divorce? One option is to buy the animal leading up to the marriage with non-marital funds. Also, it is possible to draft a prenuptial or postnuptial agreement specifying what will happen to the pet in order to ensure a smoother decision after a divorce. Since proper planning can avoid these difficult pet ownership issues, please contact an experienced Illinois family law attorney to ensure that you protect your pet’s future as well as your other assets.