Occasionally during a divorce, there is one spouse who is either currently in negotiations for a personal injury settlement or currently receiving monthly payments from a past personal injury settlement. A common question that these individuals have is whether or not they have to split that settlement with their spouse. After all, it was not the spouse who suffered the injury, it was you. There are really two answers to this question.
First, everything in a divorce is up for negotiation. Divorce court is a court of equity, not law. That means that the trial court has fairly broad discretion in determining how property will be divided between spouses in an effort to achieve a just and right division. So one spouse might get to keep the entire home, while the other spouse gets to keep the entire retirement. Furthermore, in 95% (or more) of cases, there is a settlement between the parties before the divorce is final. That is, the parties agree on how the property should be divided, not the court.
To be an effective negotiator, you need to first know what a judge is likely to do in the event you cannot reach an agreement with your spouse and the judge is left with the task of dividing the property.
That brings us to the second answer. Typically, a court will look at the bones of the personal injury settlement agreement to determine whether the settlement (or any portion thereof) belongs to both spouses as marital property or just one spouse. If the settlement was for lost wages, for example, a court will be more likely to determine that the amount belongs to both spouses (unless it is for future lost wages). On the other hand, if one spouse had a personal injury settlement for pain and suffering, those damages are much more personal and less likely to be divided up by the court.
Honestly, there is no answer that will always be accurate. That is why you need a good personal injury attorney and a good divorce attorney to help you make the best argument you can make in front of the judge. Your lawyer will look at things like:
- Were you separated at the time of the injury?
- What was the purpose of the settlement amount?
- What is the other property in the marriage?
- How has the injury affected your ability to earn?
- And the list goes on.