Who Keeps the Family Dog in an Illinois Divorce

Who Keeps the Family Dog in an Illinois Divorce?

Americans love their pets. In fact, some statistics released by groups such as the Humane Society of the United States estimate that almost two-thirds of households in the United States have at least one pet. Pet owners have very strong attachments to their animals; the thought of having to leave their pet, even for a short period of time, can cause some pet owners to experience illness and emotional distress. Some pet owners view their pet as if it was one of their own children and will even take time off of work to care for an ill pet. Many pet owners carry pictures of their pets with them on their phones, in their wallets, or in their purses.

Unfortunately, households with pets are not immune from divorce. In fact, some estimates suggest that about one-third of households that experience divorce have a pet dog or a pet cat. When spouses go through a divorce, they will consider the division of their marital property and will consider, for example, who will keep the marital house, who will keep the car, and so on. But divorcing spouses might sometimes not consider who gets to keep the family pet after a divorce.

Basics of an Illinois Property Division

Illinois is what is known as an “equitable distribution” state when it comes to divorce. This means that when couples divorce in Illinois, the court will make an equitable distribution of all marital property. “Equitable” does not mean equal; rather the court is only required to distribute property in a fair manner. In a divorce case involving Illinois property division, the court considers a number of factors in making the property division, including:

  1. the contribution of each party to the acquisition, preservation, or increase or decrease in value of property;
  2. the value of property that is assigned to each spouse;
  3. pre or postnuptial agreements between the parties; and
  4. the situations of the spouses, including financial, employability, and the assets and liabilities of the parties.

Not all property is subject to this equitable division, however. Rather, only “marital property” is subject to division. Marital property may not include property that was:

  1. acquired by inheritance or descent;
  2. acquired before the marriage;
  3. acquired after a judgment of legal separation; or
  4. excluded by agreement of the spouses.

How Courts Deal with Family Pets in an Illinois Divorce

When two spouses divorce in Illinois, any family pets the couple may have are treated in the same way as any other article of personal property (such as photographs, antiques, or automobiles). The court will first decide whether the pet is marital or non-marital property. If the pet is found to be the non-marital property of one of the spouses – i.e., if one spouse purchased the pet prior to the marriage using his or her own funds – then the court will award the pet to that spouse.

But if the pet is found to be marital property (for example, if the couple purchased the pet together after they were married), then the court will make a finding as to which party will receive the pet. In making its decision, the court will consider relevant evidence and testimony, including evidence and testimony that might show:

    • Which party purchased the pet;
    • Which party typically cared for the pet;
    • Which party has the means and facilities to care for the pet; and
    • Which party has the stronger sentimental attachment to the pet.

Protecting Your Pet in an Illinois Divorce

If your family pet was received by inheritance or descent, you likely do not need to worry about whether you will lose your pet in case of a divorce. Property received by inheritance or descent (such as when you receive property as a beneficiary of a will or trust) is not typically considered marital property and thus is not subject to division by the court.

There are other things you can do to protect your pet in case of a divorce. If you can, purchase the pet before the marriage using your own funds. This will make the pet “non-marital” property and not subject to division by the court. If you decide to purchase a pet after the marriage, consider a postnuptial agreement. A postnuptial agreement is one made by the spouses after the marriage that informs the courts how the parties agreed, in the event of divorce, how to divide certain property or which party is to receive a certain property item. By entering into such an agreement with your spouse while you are still married, you can indicate to the court who you would like to be awarded the pet. Because courts in equitable distribution states tend to favor agreements between the parties, the court is likely to follow such a postnuptial agreement.

Contact a Wheaton Divorce Lawyer for Assistance

When you are going through a DuPage County divorce, it is essential to have the assistance and guidance of an experienced family law attorney to protect your assets. At Abear Law Offices, we are dedicated to helping you hold onto property that is of a significant or has sentimental value to you, such as a family pet. Contact us today to discuss your case at 630-904-3033.

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