What about personal injury lawsuits in divorce?

Let’s say you’ve been been injured at work, or driving a car. If that’s the case, then you might sue someone for a personal injury, or maybe you have ea worker’s compensation case. If so, you might receive a large sum of money as damages. But will you have to split that with your spouse?

Understand marital property

Before you understand if your spouse is entitled to any of your financial award from a law suit or worker’s compensation claim, you need to understand the definition of “marital property” as it is used in the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”).

  • Marital property definition: Marital property is everything that is NOT non-marital. That’s because, pursuant to Section 503 of the IMDMA, “for purposes of distribution of property, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed marital property.” See the statute at 750 ILCS 5/503.
  • Non-marital property definition: To overcome the presumption the property is marital, it must fit in one of several categories of non-marital property. Without getting to verbose in quoting the statute, understand that non-marital property is a) property a spouse had prior to the marriage that did not convert to marital property by being co-mingled with it, b) property acquired during the marriage that was not co-mingled with marital property so long as that property was received by gift or inheritance. Additionally, a prenuptial agreement can define non-marital property in different ways. The definition of non-marital property actually gets more complex than that, but that’s an overview.

The definitions matter, because of the following treatment of the two types of property:

  • Treatment of Marital Property: This is split between the spouses upon divorce in proportions that the court finds equitable
  • Treatment of Non-marital Property: This is retained by the spouse who acquired the property.

Are lawsuit damages and worker’s comp marital property?

If you are thinking about divorce and expect to receive a large sum of money from a personal injury lawsuit or from worker’s compensation, then you are probably interested in keeping as much of the money as possible.

That would mean that you want your compensation to be treated as non-marital property.

As a divorce lawyer in Illinois, I know that people can have very strong feelings about having to share money they received as a result of getting injured.

But even without knowing anything about your case, I can tell you that chances are you will have to share your injury compensation in your divorce. That’s because there is a very, very high chance that Illinois law will treat your compensation as marital property.

When did the injury occur?

The key factor in determining whether the personal injury award is marital is the timing of the injury.

If the injury occurred during the marriage, then most certainly the resulting financial award would be considered marital property, and therefore, it would be split in the divorce.

However, if the injury occurred before the marriage, then the injury award would almost definitely be considered non marital property.

For example, the award in the below scenario would be non-marital property:

  1. Bob is injured in July of 2018, and files a personal injury lawsuit the same month.
  2. Bob get’s married in December of 2018.
  3. In January 2019, Bob’s case settles, and he receives $100,000 that he puts in a totally separate account from all his other accounts, not co-mingling it with any money acquired during his marriage.
  4. Bob files for divorce in February 2019.
  5. Since Bob’s injury occurred before the marriage, and Bob did not co-mingle any of his injury award with money acquired during the marriage, Bob’s $100,000 is his non-marital property – so he will not have to split that with his wife in the divorce.

There are some very interesting cases that focus on the timing of an injury, and when the injured person actually had the right to sue. The above explanation is as bit of a simplification, but it should give you a decent idea of how personal injury and worker’s compensations awards are treated in a divorce.

Protecting an injury award in a divorce

The job of a divorce lawyer is to, without the bounds of the law, help clients achieve various financial and personal objectives.

If you are planning to get divorce and are awaiting an verdict or settlement for your personal injury, then there are some strategies that can be used to increase the chances that you get to keep as much of your personal injury award as possible.

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).