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Its Raining Cats and Dogs and…

A recent October 9, 2019 New York Times article by Steven Petrow asks “After a Divorce, Who Gets the Dog?” The author tells the story of how he was offered a dog in exchange for $16,000 during his divorce proceedings. There, because his spouse had the dog before the marriage it was treated as non-marital property and, as such, he had no claim on the dog. He notes that three states, Illinois included, have amended their family law statutes to treat animals differently from other types of property.

Enacted in 2017 and effective as of January 1, 2018, Illinois added subsection (n) to section 503, which addresses the disposition of property and debts, of the Illinois Marriage and Dissolution of Marriage Act. The new section provides:

(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. As used in this Section, “companion animal” does not include a service animal as defined in Section 2.01c of the Humane Care for Animals Act.

There is no reported Illinois case addressing how the court will determine the “well-being” of the companion animal. It could be posited that the court will hear testimony about which party takes the animal to the veterinarian, the groomer, and other service providers and which party provides other care for the animal such as bathing, walking, and feeding. The court may also hear testimony from the parties about their care of and interactions with the animal. Ultimately, the court will likely conclude that the animal is more connected to- and its well-being enhanced by being with- the party who provided the majority of the care.

There is likewise no interpretation of how the inapplicability of the provision to a service animal will be applied. A service animal is defined pursuant to 510 ILCS 70/201(c) as: “an animal trained in obedience and task skills to meet the needs of a person with a disability.” This definition appears to include animals trained specifically to work with persons with a disability; however, in a recent case, a party asserted that section 503(n) is inapplicable, and the animal at issue should be allocated to him or her, because the animal is an “emotional support” animal. In this regard, in a humorous October of 2014 article by Patricia Marx in the New Yorker entitled “Pets Allowed: Why are so many animals now in places where they shouldn’t be?” explains:

An E.S.A. [emotional support animal] is defined by the government as an untrained companion of any species that provides solace to someone with a disability, such as anxiety or depression… If you want to turn your pet into a certified E.S.A., all you need is a therapist type who will vouch for your mental un-health. Don’t have one? Enter “emotional-support animal” into Google and take your pick among hundreds of willing professionals. Through a site called ESA Registration of America, I found a clinical social worker in California who, at a cost of a hundred and forty dollars, agreed to evaluate me over the phone to discuss the role of Augustus, the snake, in my life.

Thus, since it is relatively easy to obtain an emotional support animal designation, one would further posit that only a specifically trained service animal, such as a seeing eye dog, would be excluded from the provisions of section 503(n) but this is not yet been decided in any Illinois case. This potential loop hole could result in significant litigation and game playing, where a party obtains such a designation after the commencement of the divorce proceedings in an effort to seek an advantage relative to the allocation of their pet.

Further, another concern relative to the new statute is the potential for future litigation relative to pets. Although courts typically make every effort to disentangle parties subsequent to their divorce, the new provision in section 503(n) allowing for possible “joint ownership of and responsibility for” could result in continued contact between the parties and possibly lead to future disputes and complications and even litigation. Thus, a party should strongly consider the benefit of continued contact with a pet if it also requires continued contact with a former spouse!

If an agreement as to the custody of an animal is reached, in providing for the allocation of any animals in a Settlement Agreement, we recommend providing that the party allocated the animal would be responsible for all expenses associated with the animal. We also recommend language such as: “Husband, upon presentment, shall sign any and all documents necessary to transfer ownership of the dog to Wife including, without limitation, all documentation to change the registration of the dog’s chip.”

Finally, in his article, Steven Petrow mentions consideration of a premarital agreement providing for the determination of custody and support for animals in the event of a divorce and references the document as a “petnup”! In a recent premarital agreement, we included a provision for the allocation of the parties’ current dog, as well as any future animals, as follows: “In the event of the entry of a judgment of dissolution of marriage, the parties’ dog, Spot, if still living shall be allocated to Susan and she shall be responsible for any and all costs associated with the dog thereafter. Further, unless the parties jointly agree otherwise in writing signed by both parties at the time any subsequent animal is acquired or at any time during their marriage, in the event of the entry of a judgment of dissolution of marriage, any future animals shall likewise be allocated to Susan and she shall be responsible for any and all costs associated with the animals thereafter.”

People, me included, love their animals and consideration should be given to their custody during any dissolution of marriage proceedings and, in certain instances, when preparing prenuptial agreements.

Katz & Stefani

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