Pet owners love their pets and view them as an important part of their family. Pet care is a multi-billion dollar industry, as evidenced by the increase in pet insurance, pet attire, specially made pet food, regular pet grooming services, and the number of pet pictures owners carry in their wallets. About a third of pet owners have taken time off work to care for sick pets, and a recent survey revealed that more pet owners would rather be stranded on a desert island with their pets than their spouse. With approximately half of all marriages in the United States ending in divorce, 39% of all households owning at least one dog, and 33% of all households owning at least one cat, it is inevitable that pet owners going through a divorce are bound to ask: “Who keeps Fido or Fluffy after the divorce?”
The reality is that, in Illinois, a pet is viewed as an item of personal property. In dividing the parties’ property, Illinois courts categorize property as either marital (i.e., belonging to both spouses) or non-marital (i.e., belonging to one spouse). The court then awards each party his or her non-marital property and an equitable portion of the marital property.
Non-marital property includes property acquired by gift, legacy or descent; property acquired before the marriage; and property excluded by valid agreement of the parties. In other words, if one of the parties owned the pet before the marriage or received the pet as a gift or part of an inheritance, or if the parties agreed who would own the pet after the marriage dissolved, the court would award the pet as part of that party’s non-marital property.
On the other hand, marital property includes all property that is not non-marital. So if the parties acquired the pet in a manner other than one listed above, the pet will be considered marital property and the court will decide who will own the pet. Just as the court would hear testimony and make findings of fact regarding other personal property held dear to the parties, including antiques, heirlooms, photographs, and other property to which the parties have sentimental attachment, so too would the court make such findings of fact relating to the parties’ pet.
So what can you do if you want to ensure that the court awards you Fido or Fluffy? Purchase the pet before the marriage with your pre-marital funds. Sign a premarital agreement prior to the marriage or postnuptial agreement during the marriage specifying who will own the pet should the marriage terminate. If you are already married and do not want to sign an agreement, take affirmative steps to demonstrate that you are the pet’s primary caregiver: take the pet to the veterinarian and the park and purchase the pet’s food, vaccinations, and grooming supplies. However, keep in mind there is no guarantee the court will view these actions as indicative of who should own the pet after the dissolution. In the meantime, continue to enjoy your furry friend’s companionship.