By Martin Sliwinski

Last year, I was connecting with a newfound law school graduate who had just been hired. He was telling me about his first project as a lawyer in the divorce field. His assignment was conceptually straightforward. It was to prepare a visitation schedule and allocation judgment for decision making for the parties. Much to my surprise, it was not a visitation schedule and allocation judgment for decision making for the two children born to the marriage. It was for the parties’ two Yorkies. The more I thought about the situation the less surprised I was. Per 2019-2020 National Pets Owner Survey, Sixty-Seven percent (67%) of U.S. Households (85 million families) own a pet. The pet industry is a $95.7 billion-dollar industry.[1]

Despite their emotional significance and financial burden, up until not too long-ago pets were treated no different than kitchen tables and living room paintings. In the Court system, there was no consideration of the pets’ living conditions, the ability of the party to take care of the pet, and any other considerations as to the well-being of the pets. It was not until recently did the Illinois Legislative completely redefine the Court’s attitudes toward pets giving them the attention that they deserve by treating them less like property and more akin to children.

The Illinois Marriage and Dissolution of Marriage Act has added paragraph (n) to Section 503, which in summary states that once the Court determines that there is a marital pet, the Court will determine whether there will be sole or joint decision-making and what the visitation schedule looks like based on the Court’s consideration of the well-being of the companion animal.

What is a Marital Pet?

The newly included paragraph (n) begins by clarifying that it only governs if the pet is considered a marital asset. Briefly, I will go over what would pet would be considered a marital asset and what pets would be considered non-marital. Marital Assets are defined broadly and encompass any property acquired subsequent to the marriage unless it falls under some of these common exceptions:

• The pet was a gift to a specific party;
• The pet was an inheritance to a specific party;
• The pet was acquired in exchange for property acquired before the marriage; or
• The pet was subject to a prenup or postnup.

As for what animals are considered pets, the statute was drafted with the intention of being broad and covers any animal that is commonly considered to be a pet or that the owners treat as pets. This opens the door for birds, cats, dogs, horses, reptiles, insects, and other friendly creatures. More likely than not, if you treated the animal as your pet, the Court will consider it your pet as well.

The only exclusion carved out is for service animals that assist individuals with a physical, sensory, psychiatric, intellectual, or other mental disability. In those cases, naturally the service animal will be given to the party who the animal is assigned to.

Allocation of Responsibilities

While you may have heard of an Allocation or Parental Responsibilities and Parenting Time for children, you may not know that there are Allocation of Responsibilities and Visitation Schedules for pets as well. This can include decision making on medical issues, pet extracurriculars, and other common decisions made on behalf of the pet. That said, Appellate Courts have not yet gone so far as to require the division of expenses on a pet, but that issue has not yet been before the Appellate Court.

Visitation schedules can look just like parenting visitation schedules for children and depends on what works best for the parties and the pet. You may have the pet on alternating weeks, alternating weekends, the first two weeks of the month, and so forth. Here, the lawyers can be creative in meeting the needs of the parties and the pet.

If the parties can’t communicate and jointly agree on the behalf of the pet, the Court is required to consider the well-being of the pet when selecting who makes the decisions. Arguments can consist of:

• Who provides better living conditions for the pet?
• Who previously was in charge of tending to the pets’ daily needs?
• Who is better suited to tend to the pets’ daily needs moving forward?
• Who has made decisions on behalf of the pet in the past?

Future of Pets in Divorces

We have come a long way since 2015, where in In re Marriage of Enders and Baker, the First District Illinois Appellate Court affirmed the trial court’s court decision to deny pet visitation (note this is before the statute was revised and this case should not be considered good law) and proposed a concern that “awarding pet visitation would only serve as an invitation for endless post-divorce litigation.”[2] Has this warning come to fruition? Have courts been inundated with pet litigation in divorce cases? It’s hard to tell given that the statute is relatively recent, but the general consensus right now seems to be that the answer is no. Some lawyers have indicated that the whole procedure is absurd, taking matters to the extreme by suggesting that the statute may open the door for guardians and experts for the pets to determine their best interests or for parties to be on the hook for large sums of support obligations for pets. However, once again, these concerns have not come to fruition.

Now that doesn’t mean that parties aren’t being litigious when it involves their pets. After all, the pets can be a source of emotional importance to both sides. Therefore, it is pivotal to ensure you hire an attorney that understands what you value most. Be wary of any attorneys that are unable to understand and share your values as they pertain to your pets and other matters. As a brief disclaimer, please note that everything in this article is legal information and intentionally general in its presentation. This article may not address specific facts present in your unique case and this article should not be interpreted in any way as legal advice or forming an attorney-client relationship.

[1] https://www.americanpetproducts.org/press_industrytrends.asp

[2] In re Marriage of Enders & Baker, 2015 IL App (1st) 142435, ¶ 133, 48 N.E.3d 1277, 1291