Under current law, pets are considered property and factored into property division in a divorce. In many situations, however, dogs, cats and other pets are considered members of the family, and great care and consideration must go into who will get the pets and how they will be cared for.
Illinois Dog Custody Battle Lawyer — Mediation And Divorce Agreements For Your Pets
While there is not a legal standard for how to go about this, there are solutions that can ensure these members of the family are also protected. At Buffalo Grove Law Offices, we are committed to helping you make the best decision for your pet.
THE WELL-BEING OF PETS IS THE FOCUS OF PENDING REVISIONS TO THE IMDMA
Senate Bill 1261 was filed on March 29, 2017 by Illinois Senator Linda Holmes. As of today’s date, May 3, 2017, it has passed the Illinois Senate and is on its way to the Illinois House.
It would revise the following sections of the Illinois Marriage and Dissolution of Marriage Act:
1. 750 ILCS 5/452 deals with parties together filing a joint petition for dissolution of their marriage.
750 ILCS 5/452 new (k): The parties have executed a written agreement allocating ownership of and responsibility for any companion animals owned by the parties.
This may not seem significant, but some judges do and did not allow for agreements related to animals. If the parties needed to go back to court, some courts have been reluctant to take up valuable court time over pets. Now, the parties would safely be able to include an agreement about their pet in the final agreement.
2. 750 ILCS 5/501 deals with Temporary Relief before the divorce is granted.
750 ILCS 5/502 new (f): Companion Animals. Either party may petition or move for the temporary allocation of sole or joint ownership of and responsibility for a companion animal jointly owned by the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.
Judges have the power to issue Orders of Protection which protect pets from abuse. Now, the
court would have more power to make orders regarding pets during the case.
3. 750 ILCS 5/503 deals with decisions about the division of property between the parties.
750 ILCS 5/503 new (n): If 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.
Pets and animals have always been defined as property like a table or a chair in most states (including Illinois). Now, the pet or animal would be treated as unique property, and its well-being taken into consideration.
If you would like to discuss the pending legislation and how it affects your pet or animal issues in a divorce proceeding, please contact Angela Peters.
Pets Are Unique Property
We are regional leaders in the conversation concerning how this process is best handled. We have put on seminars in the area discussing how courts are equipped to evaluate pets as unique pieces of property. Heirlooms are considered unique property and therefore divided differently. We argue that pets should also be considered as unique property and therefore given additional consideration in property division.
Visitation Agreements For Pets are generally Unenforceable in Court
While some couples do write visitation plans for the pets as part of the agreement, these plans are generally not enforceable.
We understand how important this decision can be for you and your children. We are committed to providing solutions that will work for your family, including your pet.
Articles on this Site regarding Pet Issues
Please visit the Family Law Articles section on this website for a number of articles concerning pet and divorce issues, including:
- Take Home the Frying Pans and All Else, But Fido is Mine
- Take the House, But the Dog is Mine: Anecdotal “Tails’ About Pet Custody Issues in Divorce
Can an Illinois Judge award visitation of a pet in a divorce?
No Illinois appellate case prior to Enders v. Baker addressed the issue of pet visitation, so that the Court looked to a New York case which had addressed the issue: Travis v. Murray, 977 N.Y.S.2d 621, 631 (N.Y.Sup.Ct. 2013). In that case, the New York Supreme Court declined to apply the “best interest” of the dogs standard because dogs do not rise to the same level of importance as children. That Court did apply a “best for all concerned” standard, maintaining that “household pets enjoy a status greater than mere chattel.” However, that Court stated that awarding visitation “would only serve as an invitation for endless post decree litigation”. For some Judges and lawyers, that may seem to be the end of the visitation issue for now.
On the issue of pet possession/custody, I believe that the Court did analyze the issues of who was best to be the owner of the dog (as there is no basis for the court to award joint custody/possession of the pet). The Court obviously felt that it did have tools for it to work with, to make an informed and analyzed decision, rather than just make make one of the parties the “owner” of the two pets in that case. The Court looked to the definition of “owner” of pets in relation to the Illinois Animal Control Act: “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian” (510 ILCS 5/2.16)
In order to decide which party should get the two dogs, the Illinois Court was in a position to simply award either or both of the two dogs to the wife (who ultimately was awarded the two dogs) as property, rather than go through the Animal Control Act analysis. In my opinion, the Court would not have to have done the additional analysis unless it did feel that it was making the best informed and analyzed decision. The Court crafted a tool to use, to make a custody/possession decision, even if there are some who believe that the Court did not intend to start a basis for making custody/possession pet decisions in other cases.
As to the issue of pet visitation, the husband in the Illinois case had testified that he had moved to an apartment where he was not allowed to have pets. I think that that made the Court’s decision easier to make as to whether husband should have court-ordered visitation with the two dogs. If the facts of another case are better suited to a visitation plan for the pet(s), I believe that the Courts do have the power to fashion one. Parties to a divorce are allowed to continue owning property together after the divorce, if the facts are suitable for that. There is no Illinois law which forbids parties, in an appropriate case, from continuing to own property together in some manner. However, ultimate ownership to one party only is the preferred outcome, as it is more likely to keep the peace. One type of case which is prime for this consideration is that of children and the pet following the children for visitation with a parent.
If the parties do have an agreement for visitation with the pet(s), the Court will very likely uphold it. That is certainly the easier way to provide for visitation with pets.
Plaintiff sued for injuries she sustained. Defendants’ 105-pound dog bit her. She claimed negligence. The Trial Court granted summary judgment for Defendant on a common-law negligence claim. There was no evidence that Defendants knew or had reason to know that their dog was dangerous. The dog was in the care and control of Defendant’s brother.…Read More
TAKE THE HOUSE BUT THE DOG IS MINE:ANECDOTAL ‘TAILS’ ABOUT PET CUSTODY ISSUES IN DIVORCEPets have been considered as property under traditional legal rules, like a lamp or a couch. Courts throughout the country utilize the “property” designation in a myriad of contexts, applying the term both to tangible and intangible interests: Trademarks, Corporations, Trusts,…Read More
1. Pet Custody, by Emily J. KellyWhen couples face divorce or legal separation, they must divide many assets, finances, property and belongings. Among these assets are the family pets. People commonly hear of disputes over child custody or visitation, but for some couples, custody of pets may be just as emotionally consuming. Pets are often…Read More
In a case in which the parties to a divorce can’t agree as to who gets to keep the pet(s), or whether the other person has a right to visitation, the Court does have the authority to make a decision regarding pet possession (custody) and pet visitation. Recently the Illinois appellate court did consider the visitation…Read More
Although there are no established laws on pet custody or visitation in Illinois or other states in the U.S., these issues are on the rise. Judges recognize that people have a very emotional attachment to their pets, and they are treating dogs more like children than like tables or chairs. Ten years ago, a claim…Read More
Mediating Pet Agreements Pet mediators are available to mediate pet disputes and mediate pet agreements when the people in dispute are willing to work with them. Pet mediators and the parties’ attorneys need to be the balancing act to keep the parties focused when the parties are fighting over pets. From the beginning, the parties…Read More