Illinois Pets and Divorce

When a couple gets a divorce, they divide their assets and generally share custody of their kids — but what happens with the family dog?

Who gets the dog, cat, horse or boa constrictor when the marriage ends is a question that has sparked some ferocious custody disputes and is a growing area of family law in Michigan.

A recent survey of the American Academy of Matrimonial Lawyers noted a marked increase in pet custody cases during the past five years. Dogs fetched the top spot as the most disputed family animal, with a clear majority at 88 percent, while cats came in a distant second at 6 percent, with a combination of horses and others also at 6 percent.

Family and matrimonial lawyer Nancy Stone of Rotter & Stone in Franklin says it’s definitely a growing issue in her busy practice.

“I have clients who have worked together to divide million-dollar assets, but they can’t agree to a settlement regarding their family dog,” Stone said. “The intensity people can invest in a pet is phenomenal, because they view it as a member of the family.”

There is a trend in the law to enact legislation that would treat pets more like children in a divorce. For example, Illinois recently passed a law stating that judges in divorce proceedings can consider the well-being of companion animals and put in place sole or joint custody for the couple.

But Michigan hasn’t adopted those laws as of yet.

“Laws here still state that pets are treated no differently than personal property, such as a couch, silverware or a painting — and are dealt with under the equitable property division statute,” Stone said. “The court doesn’t typically look into things like what is the best interest of the pet or who is the 'better' dog parent.”

There may be a few scenarios that Michigan judges would consider in a divorce settlement. Stone says if the dog was a gift from one spouse to the other, that party may have an argument that the dog is their separate property.

“Or if one spouse brought the pet to the marriage and is still the primary caretaker, that could be persuasive,” Stone said. “But if the pet was purchased during the marriage with marital funds, there really is no greater right to the pet by one spouse over the other.” 

For expert advice to successfully handle pet custody issues when divorcing, Stone gives these tips:

• First, it’s best to reach a resolution with your spouse regarding your pet outside of court proceedings. Your lawyer can counsel you as to the current state of the law in Michigan.
• Then, if you are sharing custody of a pet, draw up a detailed visiting plan similar to what we typically use for children that includes a parenting schedule. Make sure it includes a right of refusal, so that if one party will be out of town, the other party has the right to be with the pet vs. boarding it.
• An added word of advice is that it’s best for the pet to follow the same parenting schedule as the kids. This will make the kids more comfortable, especially during the early divorce transitions.
• Lastly, don’t forget finances. Make sure the plan you put together includes how pet expenses are to be divided between the parties and define what is considered “reasonable” expense. It’s not unusual for one party to believe that an extraordinary pet expense such as a certain medical procedure is reasonable, while the other party will find the same expense completely unnecessary.

The goal is to remain “pet-centric,” which means thinking about how you can work together for what is best for your dog or cat. Because, Stone said, “That’s inevitably what is going to be best for the whole family.”

And for those just contemplating marriage with pets involved, it is possible to draw up a pet prenup to protect you and your pet in the unfortunate case of divorce. “Both parties can make an agreement in advance,” Stone said. ”Just make sure it is detailed, in writing and signed by both parties and enforceable across the U.S., in case one party decides to move to another state.”