If I’m divorcing, is my wife entitled to any part of a personal injury settlement that I’m getting?

It is for an injury that I suffered during our marriage.

Asked on August 1, 2015 under Family Law, New Jersey

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Your spouse's rights to such a settlement remain the same as if you were in a stable marriage, unless there is a legal separation agreemnt in effect. 

That having been said, if the settlement is to compensate for injuries, pain and suffering, loss of enjoyment or medical bills that do not have any impact on the marital estate, then such a settlement is treated as separate property (i.e. awarded to the injured spouse). 

Although, i should be noted, some state courts have held that a personal injury settlement is marital property in certain circumstances:

  • If there is a commingling assets by accepting the entire settlement in one check made payable to both parties;
  • If it is compensation for lost wages; and
  • If they are for medical bills that have an impact on the marital estate. 

Additionally, if there is a lower settlement amount than there would otherwise have been due to low policy limits or a lack of funds from the responsible party, the court has the discretion to allocate a portion of the settlement to lost wages even though the settlement indicates that it's for personal injury only.

At this point you should consult directly with a divorce attorney in your area as to the specifics of your case.


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