In Family Law

On January 1, 2018, a new law went into effect in Illinois that specifically addressed the rights of family pets during a divorce. Sponsored by Illinois state Senator Linda Holmes (D- Aurora) and titled the Public Act 100-0422, it required the Illinois Marriage and Dissolution of Marriage Act to include the following language regarding the distribution of jointly-owned pets, “the court shall take into consideration the well-being of the companion animal” (legalese for “pet”). As Senator Holmes, an animal-lover herself explains, “It starts treating animals more like children than property.”1

Before this change pets of a divorcing couple in Illinois and in all other states except Alaska, were treated like inanimate objects. “In the eyes of the law, they are really no different than the silverware, the cars, and the home,” explains Joyce Tischler, director of litigation for the Animal Legal Defense Fund.2So when a couple split and one of the spouses got the dog, the court determined the financial value of the animal and awarded this amount to the other. There was never any thought given to the physical and emotional well-being of the pet involved.

But divorce can be as stressful for animals as it is for people.

Pet owners often develop a strong emotional dependence on their dogs, cats and even snakes. In fact, years of research indicate that some people can have a more meaningful connection with their pets than they have with human family members.  But dogs and cats are not only dependent on their humans to meet their physical needs; they also need them for their emotional health.  Indeed, experts say that divorce can be as traumatic for the family pet as it is for humans.

The cause of this trauma is manifold. When a family breaks up, the normal rhythms of a household are often completely disrupted. This in itself can cause tension.  Pets can be confused by changes in their schedules and environments, resulting in anxiety and even depression. Dogs are essentially pack animals and depend on living within a certain pecking order. When the “pack” splits up, a dog’s loyalty to both sides can be difficult if not impossible to maintain. He or she may feel showing affection to one member of a couple seems disloyal to the other and consequently sometimes deliberately keeps away from both.

In an article in, Nancy Peterson, an issues specialist with the Humane Society of the United States, describes how divorce can take a toll on canine family members. “A once-energetic dog may become depressed. He may sleep more, eat less and lose interest in activities such as walking and playing with his owner. He may begin having accidents in the house or grooming himself excessively.” And not surprisingly, this could cause even more tension in the household between family members.3

Cats also experience stress during a divorce. If they have attached themselves to one half of a couple more than another, it is hoped that the court will take this into consideration when deciding who gets the kitty.

The rule of thumb is – pets go with the primary pet care giver.

Animals generally feel closest to the person who consistently feeds them, walks them, cleans their litter box, etc. But not always. It is not unusual for an animal to have an obvious preference for one person over another – over and above who deals with their physical needs. Maybe “their person” is a child.

Assuming that the pet will be equally well-cared for by whichever human parent has custody, a judge may put the emotional needs of the pet ahead of physical ones in making his or her decision. In a case described in Money Magazine, the judge ordered the court Marshall to take a divorcing couple’s pooch out to the park and to see which one of the couple it would run to first. When dog indicated that the wife was his favorite person, the judge ordered the husband to get $500 in lieu of custody.4

But kids get first dibs.

When the family includes children, it is assumed that the pet will remain where the kids are. This is because a pet can be vitally important in helping a child deal with the trauma of divorce. And even if a child isn’t responsible for feeding, walking and cleaning up after the family pet, they are often the ones the dog or cat is closest with emotionally.5

Childless couples may decide to share custody.

It has often been observed that in modern families, pets may take the place of children – especially in two career households. So, it’s not surprising that in some divorce’s physical custody of the family pet is split between husband and wife. The dog or cat may spend one week in one household and one week in another. Or if the ex-spouses live in different states (sometimes even separate countries are involved) the pet may spend six months with one parent and then six months with another. The cost of care is split and even custody during holidays is negotiated.6

If you’re wondering what’s best for your beloved furry family member while going through a divorce, here are some issues to consider before turning the final decision over to a judge.

  1. Who can provide the best life for your pet?

Try to be as objective as possible and see the situation from your pet’s perspective. Who is currently the primary caregiver for the pet? Will that same person be able to spend enough time at home to satisfy the dog or cat’s need for company? Let’s face it.  Anyone can learn how to fill a food bowl and take a dog for a walk. But if your job calls for you to be gone 10 hours a day and travel a lot for work, and your spouse works out of his/her home, they may be in a better position to give your pet the security and care they need on a consistent basis. If that’s the case, maybe you can work out visitations during the week that will still let you share your pet’s affection.

  1. Respect your ex-spouse’s relationship with your pet.

The sad irony of having to lose or even split custody of a pet during a divorce is this is the time when many people need the unconditional love that a dog or cat offers most. But whatever the final decision of where a pet will live – full time with one spouse or shared through some kind of joint custody arrangement – acknowledging the importance of a pet’s relationship with both people involved will go a long way toward making life easier for everyone – including the pet.

  1. Consider the relationship family pets may have with each other.

Dogs and cats also form attachments to each other. Ideally, this dynamic can be addressed when it comes to deciding who goes with whom. Some couples decide to keep the pets together. In which case, the spouse who has custody agrees to cover the cost of another pet for their ex-partner.

Obviously, this new revision in Illinois’s legal code doesn’t solve all of the emotional issues involved in changing the lifestyle of all members of a family – human and otherwise – during a divorce. But it should make it easier to develop strategies that cause less emotional pain for everyone.


For more information on how this change may affect you and your situation, please feel free to call us at (312) 551-1112.









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