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New Illinois Laws 2018: Pet Custody

Posted by Gina Colaluca | Jan 15, 2018 | 0 Comments

On January 1, 2018, Illinois officially recognized the concept of “pet custody” in a revision made to Section 503 of the Illinois Marriage and Dissolution of Marriage Act.  Prior to this year, pets were simply considered property to be divided by the court, like a piece of furniture or a vehicle. In other words, the court would look at whether the pet was acquired prior to the marriage, and thus, was one of the parties' nonmarital property, or whether the pet was acquired during the marriage, and thus, belonged to both parties. If the pet constituted nonmarital property, the party that acquired the pet prior to the marriage would simply be awarded the pet, regardless of the circumstances. If the pet constituted marital property, the Judge would be required to award the pet to one of the parties, and possibly reimburse the other party for half the value of the pet.

This concept did not sit well with many of my former clients, given that most people consider their pets to be family, not things. As an animal lover and pet owner, I understood their disappointment in learning that “pet custody” wasn't the law in Illinois, and that, if the parties couldn't agree upon an arrangement for their pet, the Judge would likely award the pet to one party over the other as if it were a piece of furniture. If the parties wished to have some kind “custody” arrangement for their pet, the only way to do so was to enter into one by agreement, knowing that the law did not provide for such custody. As a result, although “pet custody” did not become law until this year, it was possible for the parties to enter into a “pet custody” arrangement prior to this year, as long as they agreed to the arrangement, put the arrangement in their divorce judgment, and agreed to be bound by the arrangement as if “pet custody” were the law.

Thankfully for pet owners, parties to a divorce no longer need to decide whether to say goodbye to Fido or negotiate an agreed upon custody arrangement with their ex. Rather, the Court now has the authority to award “pet custody”  to both parties or to one party over the other, taking into consideration the pet's well-being.  Section 503(n) of the Illinois Marriage and Dissolution of Marriage Act now states “[i] f 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.” In other words, as long as the pet is a marital asset and thus, already belongs to both of the parties, the Judge can take the pet's well-being into consideration in awarding the pet to both parties under some kind of custody or parenting time arrangement, or to one party over the other entirely.

Although the new statute allows the Court to take the pet's well-being into consideration in awarding “custody” of the pet, it is important to note this new law only applies if the pet is a marital asset. It appears that, if the pet were acquired prior to the marriage, it would still constitute nonmarital property and would be awarded to the party who acquired the pet prior to marriage, regardless of the pet's well-being. As a result, it appears “pet custody” only applies to cases where the pet was acquired during the marriage, not before. It is also important to note that this new law only applies to pets, not service animals. As a result, regardless of the relationship a party may have with a service animal, the service animal must be awarded to the party who requires those services. If you have any questions regarding this new pet law, feel free to contact our office for your free consultation today!

About the Author

Gina Colaluca

Gina L. Colaluca began working as an Associate Attorney at the Law Offices of Laura A. Holwell in 2013, where she focused her practice mainly in Family Law. She now continues to focus on Family Law, as well as Insurance Law and Appellate Law, here at Holwell Law Group, LLC.

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