Family law is gradually beginning to catch up to what loving pet guardians across the country already know -- companion animals are often beloved family members and, in some cases, their only "children." Therefore, when a couple breaks up, a judge shouldn't decide who gets the pets in the same way the division of artwork, furniture and other "property" is determined.

This year Illinois became the latest state to let judges determine pets' fate based on which spouse has been the animal's primary caregiver and who can provide the dog, cat, rabbit or other critter with the better home. (However, a survey of family law attorneys found that dogs are the source of pet "custody" conflicts in 96 percent of cases.)

"The Best Interest of the Animal"

The Illinois state senator who sponsored the legislation, herself an animal advocate, says that under the new law, judges will be considering pets as beings with "feelings and emotions" rather than property and "looking at what would be in the best interest of the animal."

If an Illinois couple's battle over who gets the pet goes before a judge, both spouses will need to present their case that they have been the animal's primary caregiver. As one attorney notes, they'll need to answer questions like, "Who does the day-to-day stuff? Who buys the pet food? Who stays on top of vaccinations?" She adds, "Anything that happens in the normal care for the pet is going to become relevant now." A judge may decide to let one spouse keep the animals or award joint custody.

Your Attorney Can Help You Settle the Issue out of Court

Of course, as with all aspects of divorce, it's usually best if couples can settle the matter of who gets the pet(s) themselves, with the help of their attorneys. Otherwise, you're taking the matter before a judge who doesn't know either of you or your animal.

For many people going through a divorce, the prospect of losing their animal at such an emotionally-difficult time can be unthinkable. Too often, animals are used as pawns by spouses who don't really want them, but see an opportunity to hurt their spouse. If you have concerns about being able to keep your companion animal after you and your spouse split, it's essential to discuss the matter with your family law attorney to determine how to fight for what's best for your pet and for you.